The Chief Justice of the Supreme Court of NSW has recently issued Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI). The Practice Note came into effect from 3 February 2025 and will apply to all proceedings from that date.
These new obligations seek to strike an appropriate balance between the inevitable expansion of Gen AI into the judiciary and legal profession while continuing to allow the profession to take advantage of the technology. Striking this balance is no easy task and we look forward to observing how the industry responds to these developments.
Who does the Practice Note apply to?
The Practice Note will apply to all proceedings from 3 February 2025. The Practice Note imposes new obligations on litigant parties, legal representatives, expert witnesses and lay witnesses.
What is Gen AI?
A distillation but non-exhaustive description of Gen AI is included within the Practice Note. Gen AI is described as a technology capable of “creating new content, text, images or sounds, based on patterns and data acquired from a body of training material”. Well known examples of Gen AI include Chat-GPT and Co Pilot, but also includes legal industry Gen AI programs such as Lexis Advance AI and Westlaw Precision.
(We note the description of Gen AI “creating” content is subject to debate. A more accurate description may be that the content Gen AI outputs is “generated”, rather than “created”, given Gen AI’s output is derived from the source material on which it has been trained.)
For the purposes of the Practice Note, Gen AI does not include “spellcheck” software or software which creates chronologies from source documents.
The Practice Note expressly states that the new restrictions on Gen AI’s use is not intended to preclude, or apply to the use of, search engines (such as Google) or dedicated legal research software which uses AI or machine learning. However, in respect of the latter, practitioners should keep in mind the obligation to verify citations, case law, authorities and other references included within written submission and summaries of arguments (discussed below).
The new obligations on the use of Gen AI in NSW proceedings
A legal practitioner’s paramount duty is to the court and the administration of justice. This is an overarching obligation and sits above any obligation placed upon a legal practitioner regarding the use of Gen AI. Importantly, the use of Gen AI does not qualify or absolve the author of any professional or ethical obligations to the court or the administration of justice.
The Practice Note imposes the following restrictions on the use of Gen AI (which we summarise):
A general prohibition — Gen AI must not have entered into it any information which is the subject of a non-publication or suppression order, a Harman undertaking, or a statutory prohibition upon publication.
Affidavits, witness statements or other evidentiary material — Gen AI must not be used to generate content for documents which are intended to reflect a deponent or witnesses’ evidence and / or opinion, or other material tendered in evidence or used in cross examination.
The Practice Note contains a reminder that these documents should contain and reflect a person’s own knowledge – not something that has been generated. A disclosure will need to be included on these types of documents confirming compliance with the Practice Note.
In exceptional cases, leave may be sought to allow the use of Gen AI in the preparation of accompanying annexures or exhibits. Any such application must include sufficient detail of the Gen AI to be used, its proposed use, and the benefit to be derived by its use in the preparation of the annexure or exhibit.
Written submissions and summaries of argument — If Gen AI is to be used to prepare these types of documents, the author must verify that all citations, case law, authorities and other references exist, are accurate, and are relevant to the proceedings. Verification must not be carried out by a Gen AI tool or program.
Expert Reports — The drafting or content of an expert report (or any part of an expert report) must not, without prior leave of the Court, be generated with Gen AI. The requirements for leave mirror those for annexures or exhibits, with an additional obligation to identify any documents proposed to be submitted to the Gen AI in the generation of any aspect of the report.
The Court will consider various factors when considering if such leave ought to be given. If leave is granted, the expert witness is under additional obligations in relation to their use of Gen AI. These include the disclosure of the parts of the report for which Gen AI was used, keeping records of how the Gen AI tool was used, and identifying and annexing to the report any principles or codes which bind or apply to the expert.
Legal practitioners and unrepresented parties must make their expert witnesses aware of these requirements when instructing them.
In considering the use of Gen AI, practitioners should be aware that it, amongst other risks and shortcomings, does not contain appropriate safeguards to preserve the confidentiality, privacy and privilege of materials provided to it.
Observations & Takeaways
The use of Gen AI is a topic of much debate as it continues its inevitable encroachment into the judicial system and legal profession. Its use has the potential to increase affordable to access to justice but also risks creating a system where litigation is won by those who can afford the most advanced Gen AI tools.
We view the Practice Note as imposing fair, and not unreasonable, obligations on litigants, their legal representatives, and witnesses.
The ongoing evolution of Gen AI will continue to change the landscape of artificial intelligence and the legal profession. While we have expressed a view today, that view is likely to change and adapt as new technologies are made available. Given the rapid development of Gen AI, the commitment to review the Practice Note periodically is welcomed.
Guidelines for Judge’s
Alongside the release of the Practice Note, the Chief Justice issued Guidelines for New South Wales judges in relation to the use of Gen AI. These guidelines were released in the interests of transparency and provide guidance on how judges may use Gen AI.
We will explore these Guidelines in an upcoming Insight. Part two 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.