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.

Subpoena objections – FED

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New cases on subpoena objections in the Federal jurisdiction have been added to the By Lawyers reference guide 101 Subpoena Answers.

In Kitchen v Director of Professional Services Review under s 83 of the Health Insurance Act 1973 (Cth) (No 3) [2020] FCA 634 the Federal Court affirmed McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 and also Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 to the effect that:

  • a request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery;
  • documents for production must be identified with reasonable particularity;
  • the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings; there must be a legitimate forensic purpose for the production of documents;
  • a mere ‘fishing’ exercise can never justify the issue of subpoenas;
  • a wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave; and
  • the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.

101 Subpoena Answers is available in all By Lawyers litigation guides. It can assist practitioners with issuing and responding to subpoenas in all jurisdictions including the various grounds for subpoena objections.

Legal professional privilege – FED

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Legal professional privilege can be a complex area. But it can also be a very important area for practitioners and their clients. Fast, accurate answers to difficult questions about legal professional privilege can be extremely valuable. By Lawyers provides substantial commentary, cases and legislation on legal professional privilege in both Practice Management and 101 Subpoena Answers publications.

Evidence Act or common law?

A critical consideration when dealing with legal professional privilege is whether the uniform evidence law or the common law applies. Generally, in state courts the applicable state Evidence Act applies in all situations. However in federal jurisdictions, the Commonwealth Evidence Act applies at trial, but the common law applies in interlocutory proceedings.

The recent case of Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 dealt with legal professional privilege in a federal jurisdiction. The matter involved an objection taken to the production of documents under subpoena. The objection was on the basis of legal professional privilege, and specifically litigation privilege.

Being an interlocutory application Griffiths J applied (at [12]) the common law test where ‘litigation privilege attaches to confidential communications between a legal advisor or client and a third party if made for the dominant purpose of use in, or in relation to, litigation which is then on foot or is reasonably anticipated’.

Evidence

The court held that whomever claims privilege bears the onus of establishing the basis for the claim. That party is required to adduce admissible direct evidence to demonstrate that the claim is properly made. This means revealing the relevant characteristics of each document that will allow the court to uphold a claim for privilege. Simply tendering the relevant document and asking the court to test for privilege will not be sufficient. This affirms Brereton J’s decision in Hancock v Rinehart (Privilege) [2016] NSWSC 12 that the court’s power to inspect a document is not to facilitate the requisite proof, but to scrutinise and test the claim.

This is an important point for practitioners instructed to make such a claim. Detailed evidence must be filed as to the reason for and circumstances of the creation of the documents, including how confidentiality was maintained. The deponent of the affidavit may be cross-examined. For this reason the solicitor with carriage of the matter should think very hard before being the one to swear such an affidavit.

‘Reasonably anticipated’

Griffiths J also affirmed that, for the privilege to apply, the litigation must be reasonably anticipated, not simply a mere possibility. This does not mean more likely than not. It is to be determined objectively.

More information

See the By Lawyers Practice Management guide, or the 101 Subpoena Answers publication in the Reference materials folder of every By Lawyers litigation guide, for more detail about this case and more information on legal professional privilege generally.

Subpoenas – Legitimate forensic purpose – VIC

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Subpoenas and the considerations for setting them aside were considered recently in Walters v Perton [2019] VSC 356.

The court in its probate jurisdiction, was considering an application to set aside two subpoenas under r 42.04 Supreme Court (General Civil Procedure) Rules 2015, which provides that a court may set aside all or part of a subpoena which is an abuse of process. The applicant submitted that there was no legitimate forensic purpose for the subpoenas.

At [30] the court succinctly stated the principles which govern an application to set aside subpoenas in civil cases, with reference to the leading authorities on legitimate forensic purpose. This is a useful statement of the principles and summary of the cases. At [30] the court noted:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;

(b) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(d) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party.

(e) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted);

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

The court also commented on legitimate forensic purpose in probate proceedings specifically. The court noted that legitimate forensic purpose in probate proceedings may be informed by the court’s inquisitorial role which requires a greater supervision and control of proceedings than adversarial common law proceedings.

This case has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

Family Law – The Harman Undertaking – Information obtained on discovery or subpoena

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Commentary has been added to the Children and Property Settlement publications regarding the Harman undertaking:

Information obtained on discovery, subpoena or included within an affidavit cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs. This is called an implied or ‘Harman’ undertaking after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is a substantive legal obligation owed to the party who produces the documents and to the court: Hearne v Street [2008] HCA 36 (6 August 2008) at [107]-[108].

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