Generative Artificial Intelligence (Gen AI) can be an amazing tool and resource – but caution must be exercised when using it in a legal context.
In Australia, the Courts have begun implementing directions to the profession about use of Gen AI in the context of a court proceeding, and litigants need to be aware of the need to make disclosures about use of Gen AI, and prohibitions in some cases on use of Gen AI.
Approaches are differing between courts with the New South Wales Supreme Court taking a prohibitive approach on use of Gen AI, while the Federal Court – where many IP disputes are heard – currently adopting a 'watch and see' approach.
Practitioners also need to be aware of their ethical duties pursuant to the Legal Profession Uniform Law and applicable solicitor or barrister conduct rules.
New South Wales Courts
The New South Wales Supreme Court introduced Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) which took effect on 3 February 2025, as well as Guidelines for New South Wales judges in relation to the use of Gen AI.
This Practice Note sets out new requirements for the proper use of Gen AI in NSW Supreme Court Proceedings, which will impact any Intellectual Property matters heard in the Court.
The Practice Note sets out the risks and shortcomings of any particular Gen AI program including:
- the scope for "hallucinations"
- inaccurate or fabricated results
- inputting data to become part of a dataset
- the dataset may breach copyright
General prohibition on use of AI in Legal Proceedings
There is a general prohibition on the use of Gen AI in relation to specific materials, including: information subject to non-publication or suppression orders; information subject to implied undertakings not to be produced under compulsion for any purposes extraneous to the proceedings without the Court's leave; material produced on subpoena; or any material that is the subject of a statutory prohibition upon publication.
Affidavits and Witness Statements
The Practice Note stipulates that Gen AI must not be used to generate the content of affidavits, witness statements, character references or any other material intended to reflect the deponent or witness's evidence. This prohibition extends to the use of Gen AI to alter, embellish, strengthen, dilute or otherwise rephrase a witness's evidence.
To that effect, the Practice Note has prescribed a positive obligation upon the deponent of an affidavit or witness statement to declare that: Gen AI was not used to generate the content of the affidavit or witness statement, and the content of any annexure or exhibit in the affidavit or witness statement was prepared by the deponent.
Written submissions, summaries & skeletons of argument
The Practice Note provides that Gen AI may be used in the preparation of written submissions, summaries or skeletons of argument. However, the party preparing these documents is subject to a positive obligation to verify that any cited authorities or referenced evidence: exist, are accurate, and are relevant to the proceedings.
Importantly, the use of Gen AI in the preparation of written submissions, summaries or skeletons of argument does not alter or absolve the authors of any professional or ethical obligations to the Court or the administration of justice.
A failure to verify cited authorities or referenced materials may expose a practitioner to penalties for unsatisfactory professional conduct and in breach of professional obligations.
Expert reports
The Practice Note stipulates that Gen AI must not be used to draft or prepare the content of expert reports, unless the Court grants leave to do so.
If leave is granted, the expert witness must:
- disclose in the report the part of the material that was produced by Gen AI;
- attach an annexure to the report recording how the Gen AI tool was used; and
- attach any relevant codes or principles that apply to the expert's use of Gen AI.
Practitioners now have an obligation to draw the requirements under the Practice Note to the attention of experts.
The Practice Note and Judicial Guidelines are an attempt to caution legal practitioners of the risks of Gen AI use, and enforce the proper use of Gen AI by imposing positive obligations on practitioners, witnesses and experts.
Federal Court of Australia
The Federal Court of Australia, where many IP cases are heard, has taken a different approach.
On 29 April 2025, the Chief Justice issued a notice to the profession on the use of Gen AI in the Federal Court which was effectively that the Court will "watch and wait".
The notice has alerted the profession that the Federal Court is consulting with litigants (including self represented litigants), the legal profession, and other courts before it finalises its position on Gen AI use by practitioners and court users.
The Court expects that if litigants or legal practitioners make use of Gen AI, they do so in a responsible way consistent with their existing obligations to the Court and to other parties.
Further, the Notice sets out that there is an expectation that parties and practitioners disclose use of Gen AI if required to do so by a Judge or Registrar of the Court.
Lastly, the Court's AI Project Group will be commencing its consultation process shortly. The Court will meet with various representative bodies, as well as inviting submissions from the legal profession, litigants conducting their own proceedings or members of the public directly which can be provided by email to AI_Consultation@fedcourt.gov.au by 13 June 2025.
Other States
In addition to the Federal Court's note and the NSW Supreme Court's practice note, Courts in Victoria and Queensland have also adopted practice notes to the profession about the use of AI, and the Supreme Court of Western Australia put out a statement seeking consultation on a range of specific issues regarding use of Gen AI in litigation which it will then consider in the context of developing a potential practice note.
Practitioner's obligations
In any use of Gen AI, in addition to adherence to Court issued practice notes, legal practitioners are responsible for maintaining client confidentiality, providing independent advice, delivering services competently and diligently, and charging costs that are fair, reasonable and proportionate, among other matters. A number of State based regulators of legal practitioners have come together to issue a statement on the use of Gen AI and the potential risks of using Gen AI in the context of practitioners maintaining their overarching obligations to the Court and their professional rules of conduct.
While Gen AI can be very useful in litigation particular in dealing with large amounts of data, practitioners and litigants need to be mindful of their obligations to the Court, and stay up to date with the requirements of any Court issued directives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
