ByLawyers News and Updates

County Court – VIC

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Common Law Division Practice Note PNCLD 1-2025 takes effect in the County Court from 25 March 2025 and replaces 21 existing practice notes.

The new practice note, which stretches to 159 pages and includes a dictionary setting out key definitions, covers all the practices and case management expectations for all proceedings in the Common Law Division, including for the various specialist lists, and Appeals.

The new Common Law Division practice note supersedes the following practice notes:

  • PNCLD 1-2023 Common Law Division practice note
  • PNCLD 2-2023 Serious injury applications practice note
  • PNCLD 3-2022 WorkCover List practice note
  • PNCLD 4-2023 Family Property List practice note
  • PNCLD 5-2023 Medical List practice note
  • PNCLD 6-2023 Confiscation List practice note
  • PNCLD 7-2023 Defamation List practice note
  • PNCLD 8-2023 Adoptions, Surrogacy and Name Change List practice note
  • PNCLD 12-2023 Applications for approval of compromise practice note
  • PNCLD 13-2022 Applications by a solicitor for costs in work injury damages claims practice note
  • PNCLD 14-2023 Applications to file a notice of ceasing to act practice note
  • PNCLD 15-2023 Applications to take evidence by deposition practice note
  • PNCLD 16-2023 Information Technology (IT) practice note
  • PNCLD 17-2023 Judicial mediation practice note
  • PNCLD 18-2023 Subpoenas practice note
  • PNCLD 19-2023 Institutional Liability List practice note
  • PNCLD SP-2-2022 Suppression, pseudonym (and like) order applications practice note
  • PNCLD SA 2-2022 Applications for compensation under s85B of the Sentencing Act 1991 practice note
  • PNCLD SO 2-2022 Applications for supervision orders under the Serious Offenders Act 2018 practice note
  • PNCLD FV 2-2024 Family Violence and Personal Safety Intervention Order appeals practice note
  • PNCI 9-2021 eCase: electronic subpoenas practice note.

The specialist lists dealt with by the practice note are:

  • The Civil Claims lists: Serious Injury List; WorkCover List; Medical List; Institutional Liability List; Defamation List; Family Property List; and the General List.
  • Adoptions, Surrogacy and Name Changes List.
  • Confiscation List.
  • Appeals and Post Sentence Application List.

Commentary links for both Acting for the Plaintiff and Acting for the Defendant in the By Lawyers County Court (VIC) publication have been updated accordingly.

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 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.

Re-issued practice notes – NSW

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The Supreme Court has re-issued practice notes in relation to procedure in the Common Law division for some of the court’s specialist lists. The additions and amendments to these Practice Notes mainly clarify or enhance aspects of case management by the court.

The Re-issued Practice Notes are as follows:

SC CL 7 – Professional Negligence List

SC CL 6 – Possession List

SC CL 4 – Defamation List

SC CL 3 – Administrative & Industrial Law List

There are also corresponding and additional minor amendments to SC CL 1 General regarding case management in the Common Law Division generally.

All these amended practice notes commenced from 25 May 2020, except PN CL 7 which will commence 1 June 2020.

The By Lawyers Supreme Court Common Law – Acting for the plaintiff and Acting for the Defendant guides contain numerous relevant links to these and other practice notes. The commentaries and links in these guides have been updated accordingly.

Supreme Court NSW – commentary updated for new Practice Notes

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Practice Notes

The By Lawyers Supreme Court (NSW) commentaries have been updated following the introduction of new practice notes issued by the Court.

The Court’s practice notes provide practitioners with detailed guidance on how the Court manages its cases, complementing legislative and regulatory provisions. Practice notes specifically set out the steps practitioners are expected to take when conducting a matter and failure to comply can have serious consequences for the client and practitioner.

By Lawyers litigation Guides assist practitioners with all aspects of practice and procedure, with focused commentary, precedents and matter plans to guide you through the conduct of proceedings, from start to finish.

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