Simone Brew, Principal and Gigi Au Senior Associate of Matthews Folbigg Lawyers
Chief Justice Andrew Bell of the Supreme Court of New South Wales (“NSW”) provided a much-needed crack down on the use of generative artificial intelligence (“Gen AI”) in his latest practice note released on 21 November 2024. Supreme Court Practice Note SC Gen 23 (“Practice Note”) provides guidelines on the use of Gen AI by NSW judges, legal practitioners, and unrepresented individuals. The Practice Note will come into effect from 3 February 2025.
The Practice Note Guidelines
What is Gen AI?
The Practice Note applies to both ‘closed-source’ and ‘open-source’ Gen AI models, such as ChatGPT, and defines Gen AI as:
‘a form of artificial intelligence that is capable of creating new content, including text, images, or sounds, based on patterns and data acquired from a body of training material.’
It is specifically noted that the Practice Note does not apply to Gen AI which has the purpose of assisting with the following:
- correcting spelling or grammar;
- providing a transcription;
- formatting; and/or
- generating chronologies from original source documents.
Risks of Gen AI
The Practice Note refers to numerous limitations and risks of the use of Gen AI that legal practitioners and unrepresented individuals should be aware of. The most notable risk mentioned is Gen AI’s potential to ‘hallucinate’. When a Gen AI model hallucinates, it creates responses that are ‘inaccurate or fictitious’. This flaw of Gen AI manifested in Handa v Mallick [2024] FedCFamC2F 957, when a solicitor used Gen AI to create a list of cases for Justice Humphreys, and the case citations provided by the Gen AI model were inaccurate.
The Prohibition
The Practice Note creates a ‘general prohibition’ of entering the following information into a Gen AI model:
- information that is subject to ‘non-publication or suppression orders’;
- information produced under compulsion for any purpose that is irrelevant to the legal proceedings;
- subpoena material; and/or
- information that is subject to a statutory prohibition upon publication
The Practice Note also refers to specific documents where Gen AI must not be used to produce content or where specific disclaimers must be added if it is used.
Firstly, Gen AI cannot be used to generate the contents of an affidavit, witness statement, character reference or other documents intended to be used as evidence or in cross examination. The purpose of this prohibition is that these documents are to reflect the witness/deponent’s own knowledge, and not Gen AI’s knowledge or embellishment of events. As such, these documents must contain a disclosure that Gen AI was not used to generate its contents and leave must be sought if an exceptional case arises where a legal practitioner or unrepresented individual does use Gen AI.
Secondly, if Gen AI is being used to prepare written submissions or summaries of an argument, the author of the documents must verify in the body of the content that they have personally verified that all citations, authorities, case law, and legislation exists, are accurate, and are relevant to the proceedings. It is important to note that the use of Gen AI does not excuse a legal practitioner from their professional or ethical duties. This means if a Gen AI model produces incorrect information, it is essential that a legal practitioner verifies the information before using it.
Lastly, Gen AI must not be used to produce expert reports for a similar reason to its prohibited use for affidavits. Expert reports should exhibit the opinion and reasoning of the expert themselves. In extenuating circumstances, the Court may grant leave to utilise Gen AI, for example to analyse sound or large data sets. In such an event, the expert must disclose the use of Gen AI in the report, annex records detailing the use, and identify any code or regulations that apply. Furthermore, legal practitioners and unrepresented individuals have the obligation to draw these requirements to the expert’s attention when instructing them.
The Practice Note is a pivotal step by the Supreme Court in addressing the rapid evolvement of technology and its impact on legal practice. It is important that all legal practitioners and unrepresented individuals familiarise themselves with the new requirements in preparation of its enforcement in February 2025.
You can read the Practice Note here.
Matthews Folbigg Lawyers has a specialist team dedicated to Litigation and Dispute Resolution.
If you would like more information or advice, contact Simone Brew at simoneb@matthewsfolbigg.com.au or Gigi Au at gigia@matthewsfolbigg.com.au.
