NSW Supreme Court issued Practice Note on the use of Generative AI

NSW Supreme Court issued Practice Note on the use of Generative AI

Introduction

On 21 November 2024, NSW Supreme Court published a Practice Note SC Gen 23 and judicial guidelines in relation to the use of generative AI (“Gen AI”). Subsequent to the issue of the Practice Note, Chief Justice Bell held a briefing in early December to outline policy considerations behind the practice note and answer questions from members of the profession. An amended Practice Note, addressing the feedback received following the initial release, was published on 28 January 2025. This article summarises the Practice Note and the key takeaways at the briefing.

The “Gen AI” concerned in this Practice Note are large language model programs, both closed-source and open-source, including generic programs such as Chat-GPT, Claude, Google Bard, Co-Pilot, as well as legal-industry specific programs such as Lexis Advance AI and Westlaw Precision.

At the briefing, Chief Justice Bell emphasised several areas of concerns:

• first, in using Gen AI to prepare evidentiary materials or judgments, it may present a risk of diminished human involvement at the core of justice system;
• secondly, the unresolved issues in Gen AI programs, most notably the tendency to create fake cases, may pose a threat to the integrity of legal profession; and
• lastly, the use of Gen AI to analyse compulsorily produced or otherwise restricted information and documents may be an intrusion of security, confidentiality and privacy.

To address the last point, the Practice Note contains a general prohibition against any information subject to non-publication or suppression orders or Harman undertaking, any material produced on subpoena, and any material subject to a statutory prohibition on publication being entered into any Gen AI programs, unless the legal practitioner can be satisfied that the information will remain in the controlled environment and will only be used in connection with the specific proceeding. These types of information cannot be used to train any Gen AI program or any large language models.

Subject to the rules set out in the Practice Note, the permitted uses of Gen AI include generating chronologies, indexes and witness lists, preparing briefs or draft Crown Case Statements, summarising or reviewing documents and transcripts, and preparing written submissions or summaries of arguments.

The Practice Note

The Practice Note then sets out the rules applicable to 3 different categories of documents in court proceedings:

1. Affidavit, witness statements or other evidentiary material

Gen AI is prohibited from being used in generating the content of materials such as affidavits, witness statements and character references, as these materials are required to contain the deponent or witness’s own opinion or knowledge. These documents will be required to contain a disclosure statement to state that Gen AI was not used in generating the content of the document or any annexure or exhibit to the document.

However, while the content of these documents must not be created or amended by Gen AI, it is acceptable for Gen AI to be used in the preparatory stage of drafting the documents. In addition, Leave may be granted in exceptional cases to use Gen AI to generate annexures or exhibits to these documents. The Practice Note noted that such application must identify the proposed use of Gen AI, the specific program and its settings, and any benefit to be derived from using Gen AI to prepare the annexure.

2. Expert Reports

Similar to the abovementioned evidentiary documents, expert reports should contain the expert’s own opinion and reasoning process and thus cannot be drafted or prepared by Gen AI.

Nevertheless, the Court recognises that in certain situations, Gen AI may be beneficial to the preparation of expert reports without derogating from the integrity of the content. For instance, Chief Justice Bell noted that leave may be granted for Gen AI to be used to summarise or analyse a decade worth of medical records. The other examples in the Practice Note include using software with Gen AI program to analyse sound, graphic or video data, or to conduct statistical analysis.

Where leave is granted, the expert witness must disclose which part of the report was prepared by Gen AI, and prepare an annexure recording how Gen AI was used, including the prompts and any settings in the program, as well as any other applicable code of practice regulating the use of AI that is relevant.

It is worth noting that the legal representatives must communicate these requirements to the experts when instructing them.

3. Written submissions and summaries of argument

In comparison to the other categories of documents, this Practice Note does not prohibit the use of Gen AI in preparing written submissions or summaries of argument, however, the Chief Justice expressed strong concern about the unresolved issue of “hallucination” – where the Gen AI makes up non-existent case names and citations – and warned against reliance on using Gen AI to form arguments or to cite authorities.

The Practice Note requires that the author of the submission must verify all citations and authorities as to their existence, accuracy and relevance.

The judicial guidelines, which are applicable to all courts of NSW, prohibit the use of Gen AI in analysing evidence, formulating reasons for judgments, or editing or proofing draft judgments. Judges are also warned of the undisclosed use of Gen AI by the legal practitioners and litigants.

The Practice Note commenced on 3 February 2025.

—Coco Chen, Solicitor

Further information:

1. Amended Practice Note SC Gen 23 and Judicial Guidelines dated 28 January 2025: https://supremecourt.nsw.gov.au/documents/Practice-and-Procedure/Practice-Notes/general/current/PN_SC_Gen_23.pdf
2. Generative AI Practice Note Briefing: https://www.youtube.com/live/gpICy0lIxBA
3. NSW Law Society resources on AI for legal professionals: https://www.lawsociety.com.au/publications-and-resources/ai-legal-professionals

© Bugden Allen Group Legal Pty Ltd. This is general information only and not legal advice. You should not rely on this information without seeking legal advice tailored to your specific circumstances.