ByLawyers News and Updates

Generative AI – NSW

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Practice Note SC GEN 23 Use of Generative Artificial Intelligence and the associated Judicial Guidelines concerning the use of generative AI in documents that are put before the court apply to all matters in the Supreme Court from 3 February 2025.

The same provisions apply from the same date in the District Court by virtue of a new District Court General Practice Note 2 Generative AI Practice Note and Judicial Guidelines, which adopts the Supreme Court’s practice note and guidelines.

The key provisions of the practice note are:

  • Legal practitioners should be aware of the limits, risks, and shortcomings of any particular generative AI program they use, including the scope for hallucinations.
  • It is impermissible, without the leave of the court, to enter into any generative AI program information to which the implied undertaking, also called the Harman undertaking, applies, such as another party’s affidavits or material produced under subpoena, unless the legal practitioner or person with responsibility for the file is satisfied that the information will remain confidential, will only be used in connection with the proceedings, and will not be used to train the AI program.
  • AI must not be used in generating the content of affidavits, witness statements, character references, or other material intended to reflect a deponent or witness’ evidence or opinion, or any other material tendered in evidence or used in cross-examination.
  • If generative AI has been used in the preparation of written submissions, summaries, or arguments the author must verify in the document that all citations, legal and academic authority, and case law and legislative references exist, are accurate, and are relevant to the proceedings.
  • Affidavits, witness statements, and character references must contain a statement that AI was not used in generating their content.
  • Generative AI must not be used to draft or prepare the content of an expert report, without the prior leave of the court, and parties must bring that requirement to the expert’s attention.
  • There is a procedure for parties to seek leave if an expert proposes to use generative AI for their report, and also imposes disclosure and record-keeping obligations on the expert if leave is granted and AI is used for the report.

The Judicial Guidelines apply to all courts in New South Wales.

The Uniform Civil Procedure Rules have also been amended from 3 February 2025 to reflect these changes.

The following rules have been amended:

  • Rule 31.4: Court may direct party to furnish witness statement
  • Rule 31.27: Experts’ reports
  • Rule 51.12: Party to file and serve White Folder with summons seeking leave
  • Rule 51.13: Opposing party to file a response
  • Rule 51.36: Content of written submissions
  • Rule 51.45: Proceedings in supervisory jurisdiction
  • Rule 59.8: Procedure—Court Book, defendant’s argument and plaintiff’s argument in reply
  • Schedule 7: Expert witness code of conduct

The following new rules have been created:

  • Rule 35.3B: Use of generative artificial intelligence in affidavits
  • Dictionary: Definition of generative artificial intelligence

These amendments to the rules regulate the use of generative AI for:

  • affidavits, witness statements and other evidentiary material;
  • written submissions and summaries of argument; and
  • experts’ reports.

The commentary and precedents in By Lawyers Supreme Court (NSW) and District Court (NSW) guides have been updated in line with these new rules and practice directions. This includes links to the practice notes, and precedents such as letters instructing expert witnesses and clauses for affidavits.

The commentary in By Lawyers Local Court Civil (NSW) guide has been updated in line with the new rules.

Relevant precedents have also been added to the NSW Injuries publications: Personal Injury, Motor Vehicle Accidents, Workers Compensation, and Family Provision Claims.

The Implied undertaking section in By Lawyers 101 Subpoena Answers, available in the Reference Materials folder on all litigation matter plans, has also been updated.

New UCPR Forms 40 and 163 that contain the required disclosure notice that generative AI was not used are also being added to the relevant matter plans.

District Court – NSW

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The jurisdictional limit of the District Court increased on 16 December 2022. The limit as defined in s 4 of the District Court Act 1970 went from $750,000 to $1,250,000.

The jurisdictional limit may still be exceeded if the parties consent as provided under s 51. There remains no jurisdictional limit for motor accident claims.

Additionally, the monetary limit for the court to deal with and order interlocutory injunctions has increased from $20,000 to $100,000.

The District Court also has limited jurisdiction to hear:

Unchanged is the jurisdiction of the District Court in proceedings for possession of land. The court can only deal with such proceedings where the land value does not exceed $20,000: s 133.

There are no corresponding changes to the jurisdictional limit of the Local Court. The jurisdiction of the Supreme Court is unlimited.

By Lawyers District Court Civil (NSW) guides have been updated accordingly.

Enforcement – VIC

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The By Lawyers Enforcement (VIC) publication has been extensively reviewed and expanded.

Part of the individual civil litigation publications, the Enforcement guides deal with enforcing judgments and orders in civil matters in the Magistrates’ Court, the County Court and the Supreme Court. They are now stand-alone publications, designed to assist practitioners who are advising and representing clients that seek to recover or resist a judgment debt or other order, whether or not the practitioner acted for the client in the substantive matter.

The commentaries have been substantially enhanced. New precedents provided on the matter plan include:

  • File cover sheet
  • Retainer instructions
  • Costs agreement and disclosure document
  • Initial letter to client
  • Letter of demand
  • To do list

The commentaries and precedents cover all manner of enforcement procedures, in all levels of courts, from examination and attachment to various warrants and writs.

Related By Lawyers guides include Insolvency and 101 Subpoena Answers.

District Court litigation – NSW

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The By Lawyers District Court Litigation publication has been revised following the Court’s re-issue of Practice Note DC (Civil) No. 1. The revised practice note commenced on 31 August 2020.

The revision of this critical practice note also provided the opportunity for an author review of the District Court litigation publication, with resulting enhancement.

Both the Acting for the Defendant – District Court Civil (NSW) and Acting for the Plaintiff – District Court Civil (NSW) Guides have been reviewed. The matter plan is re-ordered and the procedural requirements of the practice note are further emphasised.

In addition, a new precedent Letter to client enclosing Practice Note DC (Civil) No. 1, has been added to each guide. The new precedent assists practitioners in complying with the court’s disclosure requirements. 

This review and the addition of the new precedent is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

District Court Civil NSW

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NOVEMBER
  •  Brand new guide added – ‘Reference Manual – 101 Subpoena Answers for NSW’
OCTOBER
  • Acting for the Defendant and Acting for the Plaintiff Guides
    • Commentaries added on service outside of Australia
    • Commentaries added on list of exhibits
  • Costs Agreement
    • Included reference to time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.

 

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