Posted on November 18, 2025 by Taylor Finnegan and Stuart Simington

REMINDER: Restrictions to the use of Gen AI in the preparation of affidavits, witness statements & character references

The NSW Supreme Court, Land and Environment Court, and District Court have adopted practice notes on the use of generative artificial intelligence (Gen AI) in the preparation of evidentiary material and expert reports (Practice Note).

As the use of Gen AI continues to grow, it is important for those preparing documents relied upon in court to remind themselves of their obligations under the Practice Note as, in our experience, the Courts will not accept ignorance as an excuse.

Key Requirements

There is an absolute prohibition on the use of Gen AI in the generation of the content of evidentiary material on the premise that “Affidavits, witness statements, character references should contain and reflect a person’s own knowledge, not AI-generated content”. 

Part of the Practice Note relating to these evidentiary materials states:

“10. Gen AI must not be used in generating the content of affidavits, witness statements, character references or other material that is intended to reflect the deponent or witness’ evidence and/or opinion, or other material tendered in evidence or used in cross examination. This paragraph does not prohibit the use of Gen AI for work that is merely preparatory to the drafting of the affidavit or other document setting out the witness’ evidence and/or opinion.

11. Affidavits, witness statements, character references should contain and reflect a person’s own knowledge, not AI-generated content.

12. Gen AI must not be used for the purpose of altering, embellishing, strengthening or diluting or otherwise rephrasing a witness’s evidence when expressed in written form.” 

The deponent of an affidavit or witness statement has an obligation to declare that Gen AI was not used in the preparation of the document.

In exceptional cases, leave of the Court may be sought to use Gen AI for the content of an annexure or exhibit.  However, no exception applies to the use of Gen AI for the contents of evidentiary material.

By way of contrast, Gen AI may be used to draft or prepare the content of an expert report (or any part of an expert report), subject to prior leave of the Court and certain conditions. These conditions include disclosure that Gen AI was used in the report and annexing to the report a record of the use and any relevant codes of practice.

Risks of using Gen AI

Unauthorised use of Gen AI in the preparation of court documents creates significant risks in legal proceedings. A meritorious claim may be lost for lack of valid evidence where the court rejects material that was produced with the assistance of Gen AI.

In a recent address to the Australian Bar Association, Chief Justice Bell outlined some of the options open to a court to discipline an individual who relies on Gen AI in breach of the Practice Note, including:

  • refusing to consider, or affording no weight to, the evidentiary material,
  • issuing a warning,
  • ordering the individual to file an affidavit explaining the circumstances in which the Gen AI was used in generating the contents of the document,
  • issuing an adverse costs order (particularly where the use of Gen AI added to the burden of the other parties in responding to its use),
  • holding the party in contempt.

You can read the Chief Judge’s address titled “Change at the Bar and the Great Challenge of Gen AI” here, and see our previous post on the LEC Practice Note on Use of Generative AI by Parties, Objectors and Experts here.

If you have any questions regarding this article, please leave a comment below or contact Taylor Finnegan or Stuart Simington.

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