Page:Take-Two Interactive Software, Inc v Anderson.pdf/16

 :(1) The voluminous nature of the applicants' evidence and their delayed response to a request regarding the possible waiver of confidentiality to allow Mr Anderson to see some confidential material prior to the preparation of his affidavit;


 * (2) The respondent's poor financial situation which prevented him from organising an expert witness; and


 * (3) The respondent's representatives' inability to contact the respondent in the weeks leading up to the expiry of the self-executing order.

In support of these submissions the respondent relies on Mr Macinnis' affidavit of 18 June 2021 and some passages of Mr Anderson's affidavit of 10 May 2021. However, there is nothing in Mr Anderson's affidavit that provides any explanation for his failure to comply with the self-executing order or why he failed to contact Mr Macinnis in the period between 4 March 2021 and 16 April 2021 to provide him with instructions.

28 As the applicants' counsel submitted (and the respondent accepted) the question of confidentiality was resolved by correspondence between the parties on 5 November 2020. The date for the filing of the respondent's evidence had been at that time extended by consent to 4 December 2020 and was subsequently extended to 16 April 2021. Even if the confidentiality issues had delayed the respondent prior to this date, the confidentiality regime cannot account for the delay after the letter of 5 November 2020. Critically, the confidentiality regime had been settled between the parties before the self-executing orders were made.

29 Nor do I accept the respondent's submission regarding the volume of evidence filed by the applicants. All of the applicants' evidence was served by 7 July 2020. No issue was raised with the Court at that time (or at any time prior to the hearing of the interlocutory application) concerning the amount of material filed by the applicants. In circumstances where the respondent has had access to all of the material for over ten months I do not accept that the volume of material provides any explanation for his failure to comply with the self-executing order requiring his affidavit evidence to be filed first by 16 April 2021 and then by 23 April 2021.

30 Mr Macinnis submitted that the respondent's poor financial position contributed to the respondent's delay. In support of this submission the respondent relied on Mr Macinnis' affidavit. The highest that evidence can be put shows that Mr Anderson did not provide funds to Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024