Take-Two Interactive Software, Inc v Anderson

Take-Two Interactive Software, Inc. v Anderson [2021] FCA 818 concerned an application by the respondent to vary the date of a self-executing order nunc pro tunc or to have a judgment set aside with leave granted for him to rely on his affidavit affirmed on 10 May 2021 at the hearing of the proceeding. The proceeding was commenced by the applicants 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 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 and engaged in misleading and deceptive conduct. The respondent denies these allegations.

The court was required to determine whether the judgment should be either varied or set aside so as to relieve the respondent of the consequences of his default. The court considered the respondent’s explanation for his default, whether the respondent had an arguable defence to the claims pleaded against him, what prejudice the respondent would suffer in the event that the orders sought by him were not made and what prejudice the applicants would suffer in the event that the orders sought were made. The court found that the respondent had not provided a satisfactory explanation for his default, that the respondent had demonstrated an arguable defence to some of the claims, that the prejudice to the respondent if the application was dismissed was minimal, and that the prejudice to the applicants if the application was granted was minimal. The court concluded that leave should be granted for the respondent to defend claims referable to causes of action for which an arguable defence had been demonstrated.

The court granted the respondent leave to rely upon the affidavit of Christopher Anderson affirmed 10 May 2021 at the trial of the issues identified in paragraph 15 below subject to any proper objection and dismissed the respondent’s interlocutory application. The court set down the proceeding for trial on a date to be fixed, in relation to the remaining aspects of the applicants’ claims. The court also referred the proceeding for mediation and listed the proceeding for a case management hearing to fix a date for trial.