The NSW Attorney General will this week sign an out of court settlement with software vendor Micro Focus, putting an end to a protracted and expensive dispute between the State’s law enforcement services and the software vendor over licenses.
Micro Focus had accused the NSW Police, the NSW Ombudsman, the Police Integrity Commission, Corrective Services NSW and countless other NSW Government agencies of illegally distributing its software for the better part of a decade in a law suit filed in May 2011.
These agencies have progressively signed small settlements with the British software vendor, but the main protagonist NSW Police continued to fight the matter in the Federal Court until late into 2012.
NSW Police and the NSW Department of Attorney General and Justice have finally settled out of court with Micro Focus.
Bruce Craig, general manager for Micro Focus Australia, told iTnews he could confirm that both parties have settled – NSW Police coming to the table shortly before a hearing scheduled for November, 2012 and the state's Attorney General last week.
The details of those settlements were attached to non-disclosure agreements that prevent the software vendor from revealing how much the case cost the taxpayer.
Micro Focus had originally sued NSW Police for $10 million, but upped the damages sought to $12 million in June 2012 after viewing the results of a court-ordered audit of NSW Police systems.
A relieved Craig said he could not name a figure, saying only that the outcome was “more than satisfying” and had “achieved the desired result.”
“It’s done and dusted,” he said. “All agencies are now fundamentally settled, but for some final paperwork.”
TIMELINE: Policing the Police
- 1988: The NSW Police and Micro Focus sign a licensing deal for use of the NS mainframe terminal software suite.
- 2003: The NSW Police begins to use Micro Focus’ ViewNow software – the next version on from NS - for terminals to connect to NSW Police's Computerised Operations Policing System (COPS), a centralised database containing all day-to-day operating information for police investigations.
- May 2011: Micro Focus accuses NSW Police of using 16,000 copies of the ViewNow software, after only paying licenses for 6500. It further alleges NSW Police distributed the software to 27 Government agencies, including fellow law enforcement agencies, RailCorp and the Office of Fair Trading. The NSW Police alleges that its 1998 agreement entitled it to a “site-wide” license for an undisclosed number of terminals. This agreement had been updated in 1999 and 2000.
- August 2011: The NSW Police Commission settles with Micro Focus for an undisclosed sum over 47 unlicensed copies of the ViewNow software.
- September 2011: Federal Court Justice Jayne Jagot appoints KPMG associate director Stan Gallo to audit NSW Police systems at a cost of $120,000.
- February 2012: Micro Focus adds the NSW Attorney General and Corrective Services NSW to its lawsuit over the alleged use of “at least” 60 copies of the ViewNow software.
- April 2012: The ABC’s 7:30 Report airs an investigation into the software piracy case.
- May 2012: The Attorney General’s Department settles out of court over the ViewNow licenses, but is further sued over its use of another Micro Focus software program, SNA Server.
- June 2012: Micro Focus increases its claim to $12 million after viewing the results of KPMG’s audit of NSW Police.
- Late October 2012: NSW Police settles with Micro Focus for an undisclosed sum, subject to a non-disclosure agreement.
- January 2013: The NSW Attorney General settles out of court with Micro Focus for unlicensed use of NS Server.
Read on to learn how the Government lost millions fighting a case it could not win...
Most of the evidence levelled against the NSW Police was presented before the court in mid-2011, with the key KPMG audit released to the parties in early 2012.
While he has the utmost respect for uniformed NSW Police, Craig was bitterly disappointed the office that runs it was prepared to engage in such a long and costly battle.
He laments that the NSW Government ever agreed to fight the case in court, and further feels the case could have been wound up faster – and at lower cost – should the NSW Police or other senior stakeholders appeared at the hearings, rather than leaving all the work to their lawyers.
The law firms, incidentally, were arguably two of the best Intellectual Property firms in the business – Clayton Utz and Gilbert and Tobin. The total cost of 18 months of litigation could have totalled as much as $2 million - $4 million.
“The State Government, as I understand it, is supposed to act as a model litigant – to behave in a way that is beyond reproach,” Craig said. “It was disappointing that we didn’t see that in their behaviour during this case.
“The NSW Police was keen to bat this out all the way and they have every right to defend themselves. But this is what is truly disappointing – beyond my motives as a Micro Focus employee and more so as a taxpayer — was the lack of oversight of the case by the NSW Government.
“There was no oversight outside of the lawyers they hired. Not a single representative of the NSW Police attended these hearings.
“If you rely only on lawyers to report how well they did in court, I expect you’ll get a biased point of view. The purpose of being a lawyer is to bill, not to win.
"The cost to the taxpayer was much more than it should have been should the Police have attended. Where was the oversight to ensure the State’s money was being spent wisely?”
A spokesperson for the NSW Attorney General said that the Government considers itself "in the final stages of the case" and thus won't comment until the ink has well and truly dried.
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