Posted on February 19, 2025 by Stuart Simington and Thuy Pham
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ALERT: LEC Practice Note on Use of Generative AI by Parties, Objectors and Experts
In November 2024, a number of NSW courts issued a practice note on the use of generative artificial intelligence (Gen AI).
On 12 February 2025, an updated Practice Note by the Land and Environment Court (LEC) on this topic commenced.
Similar updated practice notes also commenced for the NSW Supreme Court and the District Court on 3 February 2025.
Key practices applicable to the use of generative AI at the LEC are:
- Information subject to the implied (Harman) undertaking or non-publication or suppression orders are not be entered into any Gen AI program unless the person responsible for the conduct of the proceedings is satisfied that the information is not used to train any large language models or the Gen AI program, amongst other things.
- Gen AI must not be used in generating the content of affidavits, character references or witness statements. Those documents should contain and reflect a person’s own knowledge, not AI-generated content.
- Gen AI must also not be used for the purpose of altering, embellishing, strengthening or diluting or otherwise rephrasing a witness’s evidence when expressed in written form.
- Generally, documents prepared or created for the purposes of litigation need leave of the Court to use Gen AI and must contain the appropriate disclosure/verification regarding whether or not Gen AI was used.
The updated Practice Note acknowledges the benefits of Gen AI by allowing it to be used for the generation of chronologies, indexes and witness lists, the summarising of documents and the preparation of briefs or written submissions, subject to requirements regarding disclosure of such use.
With respect to expert witnesses, Gen AI must not be used to draft or prepare the content of an expert report (or any part of an expert report) without the prior leave of the Court.
The Practice Note expressly requests that parties (including unrepresented litigants) draw the requirements of that Practice Note to the attention of experts when instructing them. Accordingly, it is not enough that a copy of the Practice Note is provided to the experts. Our experience in the LEC suggests that the Court expects the parties to expressly confirm that no leave is sought to use Gen AI to draft or prepare the content of expert’s reports.
The updated practice notes are
To discuss this article please leave a comment below or contact Stuart Simington on 8235 9704 or Thuy Pham on 8235 9731.
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