Micro Focus (US) Inc v New South Wales

Micro Focus (US) Inc and others brought an action against the NSW Ombudsman for copyright infringement, claiming that the NSW Ombudsman had installed and used computer software without a licence. The NSW Ombudsman argued that it was immune from such claims under section 35A of the Ombudsman Act 1974 (NSW). The primary legal issues were whether the installation of the software constituted an act done by the Ombudsman "for the purpose of executing" the Police Act 1990 (NSW), and if so, whether section 35A of the Ombudsman Act conferred immunity from liability. Furthermore, the court had to determine whether section 35A was binding on the Federal Court under the Copyright Act 1968 (Cth) in light of section 79 of the Judiciary Act 1903 (Cth), and if the Copyright Act "otherwise provided" within the meaning of section 79.

The court held that section 35A of the Ombudsman Act did not confer immunity on the NSW Ombudsman for the alleged copyright infringements. The court found that the installation and use of the software did not constitute an act done "for the purpose of executing" the Police Act. Additionally, the court ruled that section 79 of the Judiciary Act did not render section 35A binding on the Federal Court in proceedings under the Copyright Act, and that the Copyright Act did "otherwise provide" within the meaning of section 79. The court concluded that the NSW Ombudsman was not immune from liability for the copyright infringement claims.

The court dismissed the notice of motion filed by the NSW Ombudsman and ordered that the NSW Ombudsman pay the applicants' costs of the notice of motion as agreed or taxed.