Following its introduction in 2022, ChatGPT paved the way for other generative artificial intelligence (Gen AI) platforms, making them a force to be reckoned with, capable of streamlining any take with the help of data extrapolation and language learning processes.

Gen AI is considered a subset of artificial intelligence that operates by producing written responses (including images) when prompted. To produce these responses Gen AI relies upon the datasets it is fed, but these datasets can often be traced back to websites or other unverified sources of information.

In response to this, the NSW Supreme Court in conjunction with the NSW Land and Environment Court have developed a set of considerations, ensuring lawyers and other key players within the legal industry think twice before outsourcing key responsibilities to any open or closed source Gen AI models.

What do you need to know?

Commencing on 3 February 2025, Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Practice Note) contains a set of guidelines outlining where Gen AI is considered acceptable for litigants to use[1], as well as corresponding amendments contained within Uniform Civil Procedure (Amendment No 104) Rule 2025 (NSW) (Amended Rules).

The Practice Note does not apply to search engines, transcription or translation software, generic editing software like Microsoft Editor or legal research platforms supported by AI.[2]

Following a set of amendments published on 28 January 2025, the Supreme Court has outlined that Gen AI has limitations that both practitioners and unrepresented litigants should be aware of, including:

• the production of inaccurate or incorrect responses including false citations or fabricated sections of legislative instruments;
• the potential for spreading misinformation as the datasets fed to AI may contain irrelevant, out of date or ‘selective’ information; and [3]
• information provided by Gen AI programs may not be relevant to the NSW legal jurisdiction.

Moreover, a host of ethical concerns arise when considering that many Gen AI platforms lack any inbuilt safeguards to maintain professional privilege over correspondence or other documents that may be uploaded in an attempt to make certain repetitive or administrative tasks more efficient.

Tips for Practitioners

Generally, Gen AI must not be used in generating the content of any ‘affidavits, witness statements, character references’ or other material that is intended to reflect the deponent or witness’ evidence and/or opinion without leave of the court.[4]

It is essential that practitioners include disclosures for deponents specifying that “generative artificial intelligence was not used to generate the content of the [affidavit/witness statement]” within the body of the affidavit/witness statement.[5]

Further, legal practitioners cannot enter information that is subject to non-publication orders, suppression orders, or Harman undertakings (documents obtained in proceedings can only be used for a litigious purpose) or produced by subpoena to Gen AI platforms.[6]

As an exception, provided specific criteria are met[7], practitioners can use Gen AI for the preparation of chronologies, to assist with the review of documents and to prepare written submissions.[8] In relation to written submissions, the writer must manually verify in the body of the document that the citations and academic authorities and references exist, are accurate and have relevance to the proceedings on foot.[9]

Considering the range of strict prohibitions, practitioners should consciously:

• include the necessary disclosure in all witness statements/affidavits;
• ensure they are familiar with the contents of the Practice Note so leave is sought for the use of Gen AI, where appropriate;
• direct the attention of any expert witness being relied upon to abide by the guidelines set out in the Practice Note (see below), and noting Schedule 7 of the UCPR has been amended as part of the Amended Rules;
• maintain confidentiality over all privileged documents, by storing them on secure document management systems and not uploading them to Gen AI platforms; and
• where the use of Gen AI is permitted by the Practice Note, review all work produced to ensure accuracy.

Advice for Experts

The Practice Note also highlights the obligations of expert witnesses engaged to produce reports that state their opinion/s and reasoning as evidence.

As part of these obligations expert witnesses should now note that:

• using Gen AI to produce an expert report is now prohibited without prior permission from the court[10];
• where permission or leave has been granted by the courts, experts must now disclose and identify the parts of any report that have been produced with the assistance of Gen AI; and
• reports prepared between 21 November 2024 and 3 February 2025 must identify which parts of the report (if any) have been produced with the assistance of Gen AI.

If at any point in the drafting process Gen AI has been used, the prompts provided to the AI tool and a record of how the outputs were used within the draft or final report must be annexed to the final report. [11]

What’s next?

The Practice Note will be subject to continued review as the capabilities of Gen AI expand beyond simple drafting assistance. Therefore, it is essential that practitioners, expert witnesses, and others periodically review the Practice Note for any updates to maintain best practice when using Gen AI.

Practice Note SC Gen 23 can be read here, but if you or anyone else you know is concerned about how these new guidelines may impact you, please contact Bradbury Legal on (02) 9030 7400 or at [email protected] to see how we

[1] Practice Note SC Gen 23 – Use of Generative Artificial Intelligence.

[2] Ibid [6].

[3] Ibid [7].

[4] Ibid [10] and [15].

[5] UCPR rules 31.4(3B) and 35.3B(2).

[6] Ibid [9A]. Also Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[7] Practice Note SC Gen 23 – Use of Generative Artificial Intelligence at [9A].

[8] Ibid [9B and 16].

[9] Ibid [16].

[10] Ibid [20].

[11] Ibid [22(b)].