Page:Take-Two Interactive Software, Inc v Anderson.pdf/9



NICHOLAS J:

1 Before me is an interlocutory application filed by the respondent on 7 May 2021 seeking to, in effect, set aside judgment awarded to the applicants due to the respondent's default of a self-executing order made on 16 April 2021 pursuant to r 5.21 of the Federal Court Rules 2011 (Cth) ("the Rules").

2 The 16 April 2021 order required the respondent to file and serve any evidence he sought to rely on at the hearing of the originating application by 4.00pm on 23 April 2021 or notify the Court that no such evidence would be filed or else the applicants would have judgment against the respondent. No such evidence was filed, nor was any notice received by the Court that the respondent did not intend to file any evidence. The respondent now seeks to vary the date of the self-executing order nunc pro tunc (in effect to cure the default) or to have the judgment set aside with leave granted for him to rely on his affidavit affirmed on 10 May 2021 at the hearing of the proceeding.

BACKGROUND TO THE PROCEDURAL ORDERS

3 The proceeding was commenced on an urgent ex parte basis in September 2018 by originating application and a statement of claim. Ex parte relief was granted followed by interlocutory injunctions that remain in place. The details of those orders do not need to be addressed in these reasons.

4 In summary, the applicants' claims relate to the creation and distribution by the respondent of a computer program that is referred to in the evidence and this judgment as "the Infamous mod". Broadly, the Infamous mod allowed players playing a computer game known as Grand Theft Auto V ("GTA V") to gain certain advantages over other players by taking actions in-game that players who did not have the mod (or a similar mod) installed were unable to do. The applicants' allege that in developing, marketing and selling the Infamous mod the respondent induced players to breach their contracts with the applicants, infringed the applicants' copyright, circumvented the applicants' technological protection measures and access control measures (as defined in s 10 of the Copyright Act 1968 Cth) ("the Copyright Act")) and engaged in misleading and deceptive conduct. The respondent denies these allegations. Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024