AI in the Courtroom: Navigating NSW and Victoria’s Guidelines for Gen AI

Disputes + Litigation lawyer Sarah Cooney discusses key differences, risks and a shared commitment to principles in the approaches to the use of Gen AI in courtrooms on either side of the Murray, below.

Tales of lawyers and litigants filing non-existent case law or submitting carelessly unedited court documents generated using ChatGPT serve as cautionary tales for lawyers looking to take advantage of the efficiencies provided by generative Artificial Intelligence (Gen AI).

Case law on AI errors: Recent examples in Australian courts

In Dayal [2024] FedCFamC2F 1166, the Federal Circuit and Family Court of Australia (FCFCOA) heard submissions from a family lawyer who had submitted a document generated with the help of Gen AI containing references to cases which were the result of Gen AI hallucinations – the cited cases did not actually exist. Considering the increasing use of AI across the profession, the FCFCOA determined that it was in the public interest for the responsible solicitor to be referred to the NSW Legal Services Board and Commissioner.

In ACCC v Master Wealth Control Pty Ltd [2024] FCA 795, Jackman J found that a draft resolution which ended with the words “use British spelling please ChatGPT” was likely generated or reviewed by artificial intelligence. However, Jackman J considered that this was not a “significant matter in the present circumstances” given that the draft resolution did not require “the exercise of significant legal skills or judgment”. Importantly, the Court noted that Gen AI is an effective tool for certain aspects of legal drafting, where the draft is “scrutinised and settled by a legal practitioner”.

These incidents have underscored the challenges and risks for lawyers seeking to implement Gen AI into their legal practice.

NSW sets strict Gen AI guidelines: What lawyers need to know

While Gen AI technology knows no borders, the approach to Gen AI-use in Australian courts is currently divided along the border of Victoria and New South Wales with the release of guidelines for litigants.

Issued on 21 November 2024, the Supreme Court of NSW’s Practice Note SC Gen 23 came into effect on 3 February 2025 setting out strict prohibitions on the use of Gen AI in certain contexts. The NSW Practice Note explicitly bans the use of AI to draft affidavits, witness statements, character references, or any material intended to reflect the deponent’s or witnesses’ evidence or opinion.

When drafting affidavits, witness statement or character references for the purpose of legal proceedings, parties should include a disclosure that Gen AI was not used to generate the document’s content or the content of any annexure or exhibit prepared by the deponent for the purpose of the evidence, without leave of the Court.

As a rule, expert evidence should also not be created with the use of Gen AI without leave of the Court.

Victorian courts encourage responsible Gen AI use, not prohibition

Much like the infamous potato scallop/potato cake debate, Victorian courts take a slightly different approach to NSW when it comes to adopting AI in litigation.

The Supreme Court of Victoria and County Court of Victoria have adopted the “Guidelines for Litigants: Responsible Use of AI in Litigation” (the Responsible Use Guidelines). The Responsible Use Guidelines set out 12 principles to assist both legal practitioners and self-represented litigants which emphasize the need for parties to understand and be cautious of AI tools, ensure data privacy, maintain transparency about the use of Gen AI, and uphold professional obligations.

Rather than banning the use of Gen AI to assist in the preparation of affidavit materials, witness statements or other documents which are intended to represent the evidence or opinion of a witness, the Responsible Use Guidelines advise that parties must exercise caution and ensure that the documents are finalised in a manner that reflects that person’s own knowledge or words. Self-represented litigants are encouraged to identify where Gen AI has been used to prepare a document, while lawyers are reminded that the use of AI to complete legal tasks is still subject to the professional obligations of legal practitioners, including the paramount duty to the court, the duty of candour, and the specific duty not to deceive or knowingly or recklessly mislead the court.

Transparency and responsibility: Safeguarding shared priorities across jurisdictions

In both NSW and Victoria, legal practitioners must strive to harness the benefits of AI while safeguarding the principles of justice and fairness, in recognition that the onus falls on the individual lawyer to use AI transparently and responsibly.

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