Earlier this year, we reported on Australian courts' guidance and directions to the profession regarding use of artificial intelligence (AI) in court proceedings [Link].
In a recent Federal Court decision,1 another warning to the profession has come in the form of an indemnity costs order against solicitors, following use of AI to prepare court documents.
In Murray v Victoria, the respondents brought an application relating to the filing of court documents by the applicant, containing citations that were produced by AI, which turned out to be fabricated.
Justice Murphy decided to publish the reasons, which were originally provided ex tempore on the basis that "there seems to be a growing problem regarding false citations in documents prepared using AI".
The Applicant filed a summary document in the proceeding which contained footnotes referencing anthropological and historical reports and papers. One of the respondents, First National Legal and Research Services (FNLRS), was tasked with producing the documents referenced in the footnotes and spent considerable time trying to do so. Eventually they concluded that most of the documents either did not exist or were 'fabricated'.
The Applicant's solicitor was therefore ordered to file an affidavit to explain how the document was prepared, including as to the supervision of the junior lawyers who prepared it. The evidence was that a junior lawyer prepared the documents while working away from the solicitors' office. As she did not have access to the source material, she relied on Google Scholar to find the material, which she had done during her university studies without incident.
However on this occasion, it seems that the false document citations arose through use of Generative AI. The solicitor tried to replicate her results on Google Scholar after the query was raised, but the subsequent search produced different results.
As the solicitor was junior and still under supervision, her principal also gave evidence in which he deposed that while the work was performed collaboratively, he was not aware that anyone had checked the junior solicitor's work. He accepted this as an error on his part.
The Court found that the junior solicitor took insufficient care in using Google Scholar as the source of document citations, and in failing to check those citations. The error was the failure to check and verify the output of the search tool. This error was contributed to by the inexperience of the lawyer, and the failure of her supervisor to ensure the work was adequately supervised. The law firm was therefore personally ordered to pay the costs of the respondents on an indemnity basis, though both the junior lawyer and her supervisor managed to avoid being referred to the Victorian Legal Services Board where disciplinary action could have been taken.
In commenting on the use of AI in court proceedings, Justice Murphy referenced the Federal Court's Notice to the Profession issued earlier this year (and as reported on in our previous update). While noting that the Federal Court had not imposed a ban on use of Generative AI, his Honour did state that "It is critical that legal practitioners use proper safeguards to verify the accuracy of the work produced. Any use of AI must be consistent with the overriding duty of legal practitioners as officers of the Court and their fundamental obligation to uphold, promote, and facilitate the administration of justice.".
The case serves as a reminder to ensure appropriate processes are in place for use of AI, and for supervision of legal staff. Especially where Generative AI is being used, a protocol should be in place to ensure any outputs are verified before being relied upon or provided to the Court or the other parties and that work is properly supervised and reviewed.
Generative AI can be a useful tool in many contexts within litigation, but it does not remove the need – and perhaps reinforces the need – to ensure appropriate checks and balances are in place.
Footnote
1. Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731
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