In our first of a two-part Insight, available here, we discussed Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI), which was recently issued by the Chief Justice of the Supreme Court of NSW. The Practice Note came into effect on 3 February 2025 and imposed new obligations on litigants, legal representatives and witnesses on the use of Gen AI in all NSW proceedings.
Judicial Guidelines titled ‘Guidelines for New South Wales Judges in respect of Use of Generative AI’ were also issued by the Chief Justice to accompany the Practice Note. In particular, the Guidelines govern the use of Gen AI by NSW judges regarding the delivery and preparation of judgements, draft judgments and secondary legal research purposes.
Litigants and practitioners should nevertheless be aware that the Guidelines also encourage NSW judges to ensure compliance by litigants and legal practitioners of the requirements in the Practice Note and imposes obligations on judges to identify and mitigate the improper use of Gen AI in proceedings.
Judgements, legal research and other purposes
The Guidelines provide that NSW judges should not use Gen AI in the formulation of reasons for a judgment or when analysing or assessing evidence preparatory to the delivery of reasons for a judgment.
Further, judges should not use Gen AI when editing or proofing draft judgments and no part of a draft judgment should be submitted to a Gen AI program. This no doubt reflects the very real concern surrounding the confidentiality and privacy of documents uploaded to Gen AI programs; one that warrants particular care in the case of draft judgments.
The use of Gen AI is more relaxed in the case of secondary legal research and other purposes where it is permitted to be used, subject to the judges informing themselves of the limits and shortcomings of Gen AI. For this reason, judges should closely and carefully scrutinise legal research that has been created by, or developed with, the assistance of Gen AI – including by verifying its accuracy, completeness, currency and suitability before making use of it.
This requirement extends to judges ensuring their associates, tipstaves or researchers disclose to the judge any circumstances in which Gen AI has been used in legal research or any other purpose.
Gen AI’s use in NSW proceedings
Judges may require litigants and legal representatives (including counsel) to disclose any use of Gen AI in the course of preparing submissions or other documents placed before the Court. Judges may also seek the assurance of litigants and practitioners that they have verified its accuracy, completeness, currency and suitability. This is also intended to ensure compliance with the Practice Note.
In addition to any disclosure or assurance that a judge may require of litigants and practitioners, the Guidelines also suggest that judges should remain vigilant to any undisclosed use of Gen AI in proceedings. Accordingly, judges are advised to remain vigilant and to make further inquiries with litigants and/or practitioners where they identify ‘red flags’ including but not limited to:
inaccurate or incorrect citations, analysis or application of the law;
obvious substantive errors in submissions, including case law references that are substantially or procedurally incorrect, inapplicable or unsuited to the jurisdiction, or are out of date and do not take account of recent developments in the law; and
the use of language which is non-specific, repetitive, or otherwise incorrect in its expression or spelling.
Observations & Takeaways
While the Guidelines are mainly intended to assist NSW judges in their use of Gen AI, it is also important that litigant parties and practitioners are aware of its scope. In addition to providing guidance to NSW judges in the preparation and delivery of judgments, the Guidelines go further than that and encourage judges to remain vigilant and make enquiries to guard against the unpermitted and/or undisclosed use of Gen AI in proceedings.
As with the Practice Note, the Guidelines will be reviewed regularly.
Litigant parties and practitioners must ensure they comply with the obligations imposed by the Practice Note. Our Insight on the Practice Note is available here.
A copy of the Practice Note and Guidelines can be accessed here.
For further information, please contact Hayden Fox, Matthew Del Corso or Adrian Talevski of our Dispute Resolution & Litigation team.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.