Practice Note SC GEN 23 regarding the use of Generative Artificial Intelligence, along with the related Judicial Guidelines for employing generative AI in court documents, will apply to all cases in the Supreme Court starting from 3 February 2025.
The same regulations will be enforced in the District Court from that date, as per a new District Court General Practice Note 2 Generative AI Practice Note and Judicial Guidelines, which incorporate the Supreme Court’s practice note and guidelines.
Key aspects of the practice note include:
Legal practitioners must be mindful of any generative AI software’s limitations, risks, and drawbacks, particularly the potential for inaccuracies.
Without court approval, it is not permissible to input information subject to the implied undertaking, known as the Harman undertaking, into any generative AI program; this includes another party’s affidavits or materials produced under subpoena, unless the legal practitioner or responsible individual is convinced that the information will remain confidential, will exclusively be used about the proceedings, and will not be used for AI training.
AI must not be employed to create the content of affidavits, witness statements, character references, or any other materials that aim to represent a deponent or witness’ evidence or opinion, nor any evidence submitted or used during cross-examination.
Generative AI has been used to draft written submissions, summaries, or arguments. In that case, the author must affirm in the document that all citations, legal and academic authorities, and references to case law and legislation exist and are accurate and pertinent to the case at hand.
Affidavits, witness statements, and character references must declare that AI was not used to create their content.
Generative AI cannot be employed to draft or produce the content of an expert report without obtaining prior court approval, and parties must inform the expert of this requirement.
Parties can request permission if an expert intends to use generative AI in their report. If the court grants the request and AI is utilised for the report, the expert must also comply with disclosure and record-keeping obligations.
The Judicial Guidelines apply across all courts in New South Wales.
The Uniform Civil Procedure Rules will also be amended starting 3 February 2025 to accommodate these updates.
The following rules have been modified:
Rule 31.4: The court may instruct a party to provide a witness statement.
Rule 31.27: Experts’ reports.
Rule 51.12: A party must file and serve a White Folder with the summons seeking leave.
Rule 51.13: The opposing party must 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 reply argument.
Schedule 7: Expert witness code of conduct.
New rules have been introduced:
Rule 35.3B: Use of generative artificial intelligence in affidavits.
Dictionary: Definition of generative artificial intelligence.
These rule amendments regulate the application of generative AI in the following ways:
affidavits, witness statements, and other evidentiary materials;
written submissions and summaries of argument; and
experts’ reports.
Source: NSW Supreme Court
Rule 31.4: The court may instruct a party to provide a witness statement.
Rule 31.27: Experts’ reports.
Rule 51.12: A party must file and serve a White Folder with the summons seeking leave.
Rule 51.13: The opposing party must 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 reply argument.
Schedule 7: Expert witness code of conduct.
New rules have been introduced:
Rule 35.3B: Use of generative artificial intelligence in affidavits.
Dictionary: Definition of generative artificial intelligence.
These rule amendments regulate the application of generative AI in the following ways:
affidavits, witness statements, and other evidentiary materials;
written submissions and summaries of argument; and
experts’ reports.
source: Supreme Court of NSW
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