Generative AI - NSW

Practice Note SC GEN 23 Use of Generative Artificial Intelligence and the associated Judicial Guidelines concerning the use of generative AI in documents that are put before the court apply to all matters in the Supreme Court from 3 February 2025. The same provisions apply from the same date in the District Court by virtue of a new District Court General Practice Note 2 Generative AI Practice Note and Judicial Guidelines, which adopts the Supreme Court's practice note and guidelines. The key provisions of the practice note are:

• Legal practitioners should be aware of the limits, risks, and shortcomings of any particular generative AI program they use, including the scope for hallucinations.
• It is impermissible, without the leave of the court, to enter into any generative AI program information to which the implied undertaking, also called the Harman undertaking, applies, such as another party's affidavits or material produced under subpoena, unless the legal practitioner or person with responsibility for the file is satisfied that the information will remain confidential, will only be used in connection with the proceedings, and will not be used to train the AI program.
• AI must not be used in generating the content of affidavits, witness statements, character references, or other material intended to reflect a deponent or witness’ evidence or opinion, or any other material tendered in evidence or used in cross-examination.
• If generative AI has been used in the preparation of written submissions, summaries, or arguments the author must verify in the document that all citations, legal and academic authority, and case law and legislative references exist, are accurate, and are relevant to the proceedings.
• Affidavits, witness statements, and character references must contain a statement that AI was not used in generating their content.
• Generative AI must not be used to draft or prepare the content of an expert report, without the prior leave of the court, and parties must bring that requirement to the expert's attention.
• There is a procedure for parties to seek leave if an expert proposes to use generative AI for their report, and also imposes disclosure and record-keeping obligations on the expert if leave is granted and AI is used for the report.

The Judicial Guidelines apply to all courts in New South Wales. The Uniform Civil Procedure Rules have also been amended from 3 February 2025 to reflect these changes. The following rules have been amended:

• Rule 31.4: Court may direct party to furnish witness statement
• Rule 31.27: Experts’ reports
• Rule 51.12: Party to file and serve White Folder with summons seeking leave
• Rule 51.13: Opposing party to file a response
• Rule 51.36: Content of written submissions
• Rule 51.45: Proceedings in supervisory jurisdiction
• Rule 59.8: Procedure—Court Book, defendant’s argument and plaintiff’s argument in reply
• Schedule 7: Expert witness code of conduct

The following new rules have been created:

• Rule 35.3B: Use of generative artificial intelligence in affidavits
• Dictionary: Definition of generative artificial intelligence

These amendments to the rules regulate the use of generative AI for:

• affidavits, witness statements and other evidentiary material;
• written submissions and summaries of argument; and
• experts’ reports.

The commentary and precedents in By Lawyers Supreme Court (NSW) and District Court (NSW) guides have been updated in line with these new rules and practice directions. This includes links to the practice notes, and precedents such as letters instructing expert witnesses and clauses for affidavits. The commentary in By Lawyers Local Court Civil (NSW) guide has been updated in line with the new rules. Relevant precedents have also been added to the NSW Injuries publications: Personal Injury, Motor Vehicle Accidents, Workers Compensation, and Family Provision Claims. The Implied undertaking section in By Lawyers 101 Subpoena Answers, available in the Reference Materials folder on all litigation matter plans, has also been updated. New UCPR Forms 40 and 163 that contain the required disclosure notice that generative AI was not used are also being added to the relevant matter plans.