In JNE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1314 the Court acknowledged that generative AI is increasingly used in litigation and may become a valuable research tool for lawyers and self-represented litigants. Its use is not inherently impermissible, but AI is no substitute for proper legal research. Without safeguards, reliance on it can mislead courts and even verge on contempt of court, as highlighted in Ayinde v London Borough of Haringey [2025] EWHC 1383.
While courts do not reject AI outright—particularly given the complexity of areas such as migration law—they stress that its current reliability is illusory. As explained in Ayinde, large language models can produce plausible but false answers, citing non-existent authorities or misquoting genuine ones. Lawyers have a professional duty to verify any AI-assisted work against authoritative sources.
This duty was reiterated in Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731, where Murphy J emphasised that AI use must be consistent with practitioners’ overriding duty to the Court and to the administration of justice.
Hallucination
A recurring problem is “AI hallucination”: the generation of fictitious case citations. This trend poses several risks:
- undermining otherwise valid cases through incompetence;
- risking embarrassment and compromise of the administration of justice if false citations go undetected;
- perpetuating falsehoods in reported judgments;
- wasting court and party resources; and
- The legal profession’s reputation is damaged when clients feel short-changed by superficial AI-based research.
Gerrard J clarified that the misconduct lies not in consulting AI, but in filing submissions relying on false authorities. In the present matter, the applicant’s submissions cited four such cases—either non-existent or misapplied. Consistent with Kaur v RMIT [2024] VSCA 264, the Court declined to repeat the fictitious citations to avoid further entrenching AI-generated falsehoods.
The case concerned serious professional conduct issues arising from an applicant’s lawyer filing submissions that contained references to non-existent cases. The judgment highlights the dangers of relying on artificial intelligence (AI) tools without proper verification and the implications this has for a lawyer’s duty to the Court.
Background
- The applicant commenced proceedings for judicial review of an Administrative Appeals Tribunal decision in November 2024.
The applicant’s lawyer filed amended submissions in May 2025. The Minister for Immigration and Multicultural Affairs solicitors identified four case citations that did not exist or were irrelevant.
- The Court convened a directions hearing on 12 June 2025, asking the lawyer to explain the inclusion of false citations. The Court was unsatisfied with the explanation and ordered the lawyer to file an affidavit and explain why referral to the Legal Practice Board of WA (LPBWA) should not occur.
Subsequent Hearings
- On 19 June 2025, the applicant sought to discontinue proceedings, but the Court raised concerns about the timing and the lawyer’s conduct. At the 20 June directions hearing, the Court required a further affidavit about the discontinuance instructions.
- On 26 June 2025, the lawyer admitted he had used Claude AI and Microsoft Copilot to generate and “validate” submissions, over-relied on them, and failed to check citations against authoritative databases. He apologised and outlined measures to prevent recurrence.
- Both parties made Written submissions concerning whether referral to the LPBWA was appropriate.
- At a third directions hearing on 21 July 2025, the applicant personally addressed the Court (with an interpreter) and confirmed he wished to discontinue after being advised the case had poor prospects.
- The Court accepted his explanation and granted leave to discontinue, leaving costs issues for later determination.
Decision
The Court held that the applicant’s lawyer’s conduct—filing submissions containing fictitious case citations—fell well below the professional standards owed to both the client and the Court. Citing Valu v Minister for Immigration and Multicultural Affairs (No 2)(2025) 386 FLR 365
and Dayal (2024) 386 FLR 359, the Court emphasised that such conduct is a serious breach of duty. While it accepted the lawyer’s apology, candour, and steps to prevent recurrence, it noted concern that the lawyer’s understanding of his professional duties remained superficial. It is not enough merely to confirm that cases exist; lawyers must ensure that authorities are correctly applied, not overturned, and relevant to the facts.
Considering the lawyer’s affidavit, apology, and personal circumstances, the Court determined it appropriate to refer him to the Legal Practice Board of Western Australia (LPBWA). Consistent with prior practice, the Court anonymised the lawyer’s name, leaving it to the regulator to decide further action.
Costs
The Court found the lawyer’s improper conduct caused wasted costs and contributed to the abandonment of the proceedings. Accordingly, the Court made a personal costs order against the lawyer, though not on an indemnity basis (as in Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731). Gerrard J held that the applicant was not to bear the financial burden of his lawyer’s failings.
The Court considered whether statutory powers under ss 486E–486F of the Migration Act 1958 (Cth) applied. Still, it concluded that the Court was unwilling to conclude that the case lacked any reasonable prospects of success. However, by the time the matter reached a hearing, it had become clear that the prospects of success were unreasonable, and although the applicant had discontinued the proceedings, they were not wholly without merit.
Broader powers under the Federal Circuit and Family Court of Australia Act 2021 (Cth) and relevant case law (Mitry Lawyers v Barnden[2014] FCA 918) supported the Court’s ability to order costs where a lawyer’s conduct was unreasonable and involved a dereliction of duty.
The Court noted that the lawyer had already reimbursed the applicant for legal fees, removing the need for further orders. Finally, the Court awarded the Minister for Immigration and Multicultural Affairs costs in accordance with the scale set out in the Rules, finding the amount reasonable and proportionate given the work undertaken.
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