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 Mr Anderson's affidavit there is no arguable defence that Mr Anderson was not operating in trade or commerce at the relevant time.

Prejudice

62 The prejudice to Mr Anderson in the event that the self-executing order is not varied or set aside is that he will be precluded from defending the proceeding. However, this presupposes that he has an arguable defence to the various claims made against him. I am not persuaded that Mr Anderson has any arguable defence to any of the other claims made by the applicants with the exception of those based on ss 116AN and 116AO of the Copyright Act.

63 So far as the applicants are concerned, they are well resourced corporations which, it may be inferred, derive substantial income from the GTA V works. The prejudice they would suffer in the event that the self-executing order was varied or set aside to allow Mr Anderson to defend the proceeding is that they would be required to continue to litigate against Mr Anderson in circumstances where he has on his evidence no arguable defence to most of the applicants' claims in circumstances where Mr Anderson claims to be impecunious.

64 I do not suggest the prejudice that will be suffered by the applicants is substantial but I do think it is certainly greater than that which would be suffered by Mr Anderson in the event that neither of the orders he seeks is made.

Other considerations

65 The fact that Mr Anderson's affidavit evidence has now been filed is a significant matter to weigh in the balance when determining whether to make either of the orders he seeks. However, it is also relevant that the evidence that he has filed fails to establish an arguable defence in relation to most of the applicants' causes of action, and reflects what appears to be a misunderstanding of the case pleaded against him.

DISPOSITION

66 I am not persuaded that it is in the interests of justice to make an order varying or setting aside the self-executing order made on 16 April 2021.

67 The applicants are entitled to declaratory and injunctive relief in an appropriate form for copyright infringement and also, subject to proof, any applicable pecuniary remedy. I note that I was informed at the hearing of this interlocutory application that the applicants have previously elected for an account of profits and that they do not seek any other pecuniary Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024