Anticipating the “rapidly developing nature of Gen AI”
The Supreme Court of New South Wales has recently issued a new practice note (SC Gen 23) relating to the use of Generative Artificial Intelligence (“Gen AI”), which commenced on 3 February 2025 (“Practice Note”). The Practice Note 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.”
Risks of Gen AI
While the Practice Note admits that Gen AI is able to assist lawyers and the public with various tasks in court proceedings, it highlights a number of risks and pitfalls of Gen AI, including:
(a) “hallucinations”, which is when Gen AI creates fictitious information or sources such as fake cases and legislation;
(b) the lack of adequate safeguards to preserve the confidentiality of the information or material submitted to Gen AI, which could affect legal professional privilege; and
(c) the potential for the responses generated by Gen AI to be limited by the underlying data or information fed to it.
Prohibition of Gen AI
Of particular note for lawyers, the Practice Note expressly prohibits the use of Gen AI in creating the content of affidavits and other documents that reflect a witness’ evidence unless it is preparatory in nature. Further, Gen AI cannot be used to change, embellish or strengthen a witness’ evidence. These prohibitions arise from the expectation that an affidavit would reflect the person’s own knowledge rather than AI-generated content.
The form of affidavit in NSW has been updated to reflect the Practice Note and contains a new standard paragraph whereby the person making the affidavit states that Gen AI was not used to generate the affidavit or any annexure/exhibit to the affidavit.
Regarding exhibits or annexures to an affidavit, Gen AI can be used to generate such documents if leave of the court is obtained or if the document was not created for the purposes of the court proceedings. Further directions are included regarding court submissions and expert reports.
The Practice Note concludes by anticipating further changes given the “rapidly developing nature of Gen AI”. It will be interesting to see what further directions the NSW Supreme Court provides regarding Gen AI in the future as well as if other Australian courts follow suit.
If you require assistance with court proceedings in NSW regarding wills and estates law, please contact us and book a consultation today.
By Max Williams – Special Counsel
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