NSW Supreme Court AI practice note: what you sign, what stays in

The NSW Supreme Court AI practice note, SC Gen 23, makes every affidavit, witness statement and character reference carry a statement that its content was not generated with generative AI. That sentence is what the deponent swears to, and it is what most people remember about the note. Much of the rest is about what happened earlier, including four kinds of material that must not have gone into an AI tool at all.

So there are two questions, and most practices only prepare for the first. What does the document say about AI? And what, before anyone drafted a word, left the office inside a prompt? The second has no box to tick, and paragraph 9A of the note answers it in terms the Conduct Rules never had to spell out.

This guide goes through the note paragraph by paragraph, using the version signed by Chief Justice Bell on 28 January 2025, which is still the current one on the Court’s website. It then sets NSW beside the Federal Court, Victoria and Queensland, and runs an invented file note through Nonimo to show what a label on a name changes, and what it leaves untouched.

Our page for law firms sets out which identifiers a litigation file usually carries, and which of them Nonimo recognises today. This guide stays with the court’s side of the question.

The practice note in one table

SC Gen 23 commenced on 3 February 2025 and applies to all proceedings from that date. It covers models whether their source code is closed or open, and it names the tools it has in mind, from ChatGPT, Claude and Copilot to legal products such as Lexis Advance AI and CoCounsel Core. Spelling and grammar checkers, transcription, translation, formatting, ordinary search engines and dedicated legal research software sit outside it (paragraph 6).

document or task	what SC Gen 23 requires	paragraphs
Affidavit, witness statement, character reference	no content generated by AI, and a disclosure saying so	10 to 14
Annexure or exhibit made for the case	leave first, in exceptional cases	15
Written submissions and summaries of argument	citations and references to evidence verified in the body	16 to 18
Expert report	leave before AI drafts any part	19 to 25
Chronologies, indexes, summaries of documents	allowed, subject to paragraph 9A	9B
Suppressed, Harman, subpoenaed or restricted material	kept out unless three conditions are all met	9A

Read from the top, the table looks like a set of drafting rules. Read from the bottom, it is a data rule first. Paragraph 9A comes before everything else in the note and qualifies even the uses that paragraph 9B permits, so a chronology is allowed only if the documents fed into the tool were allowed to go there.

Two background paragraphs explain why the Court wrote it in that order. Paragraph 7 warns that prompts may, unless disabled, be added to a model’s database and used to answer other users, and that public chatbots lack adequate safeguards for confidentiality, privacy and privilege. Paragraph 8 adds that data entered may be used to train the model. Whether an account does that depends on the plan; for ChatGPT, see OpenAI’s retention rules, account by account.

What you sign: the AI disclosure in an affidavit

Paragraph 10 is the prohibition. Generative AI must not be used in generating the content of affidavits, witness statements, character references or other material meant to reflect a witness’s evidence or opinion, nor material tendered in evidence or used in cross-examination. Paragraph 11 gives the reason in a single sentence: those documents should contain and reflect a person’s own knowledge.

Paragraph 12 closes the obvious workaround. AI must not be used to alter, embellish, strengthen, dilute or otherwise rephrase a witness’s evidence once it has been written down. A solicitor who asks a chatbot to tidy up a client’s statement is doing exactly what that paragraph describes, however light the edit feels.

The disclosure itself

Paragraph 13 is the part that lands on the page. The affidavit, witness statement or character reference must contain “a disclosure that Gen AI was not used in generating” its content, rephrasing included, or in generating any annexure or exhibit the deponent prepared for the purposes of the evidence.

The note supplies no form of words, and where the sentence sits is left to the practice. The wording matters less than the fact behind it. The person signing confirms something about how the document was made, so someone in the office has to be able to say who worked on the draft, and with which tools, if the question is ever asked.

What still counts as preparatory work

Paragraph 10 ends with an exception that is easy to miss: it does not prohibit AI for work that is merely preparatory to drafting. Building a chronology from the documents, indexing a bundle or summarising a transcript before a witness is proofed all fall on the permitted side, and paragraph 9B lists them expressly, together with briefs and written submissions.

1. Is it an affidavit, witness statement or character reference, or other material meant to reflect a witness's evidence?

   YesNo AI in its content, rephrasing included, and a disclosure saying so (paragraphs 10 to 13).

   NoGo to the next question.

2. Is the work preparatory, such as a chronology, an index or a summary of a transcript?

   YesAllowed, as paragraph 9B lists it, subject to paragraph 9A.

3. Is it an annexure or exhibit prepared for the case?

   YesLeave first, in exceptional cases (paragraph 15).

   NoAn existing contract or email need not be part of the disclosure (paragraph 14).

Whatever the answer, paragraph 9A has already decided what may go into the tool.

Preparatory work still means putting the documents into a tool. Before a transcript or a bundle goes in, read what to take out of a document before AI, which sets out what still identifies a person once the numbers are gone.

Paragraph 14 narrows the annexure rule from the other side. A deponent need not make the annexure part of the disclosure where the annexure was not prepared or created for the proceedings, such as a contract or an email that already existed. Where one was made for the case and AI would genuinely help, paragraph 15 allows an application for leave, in exceptional cases.

The leave application names the tool

An application under paragraph 15 must identify the proposed use, the program and its version, whether it is closed or open source or has privacy or confidentiality settings, and the benefit expected. The same four questions are worth answering inside the practice before anyone uses AI on a matter, because they are the ones a judge will ask if the use comes to light later.

Submissions: the verification goes in the body

Written submissions are where SC Gen 23 lets AI help with the drafting itself. The price is a statement on the page. Under paragraph 16, where AI was used to prepare written submissions or summaries or skeletons of argument, the author must verify in the body of the document that every citation, authority and legislative reference exists, is accurate and is relevant to the proceedings.

The same check applies to references to evidence, whether in affidavits or in transcript. Paragraph 18 adds that using AI does not qualify or absolve the author of any professional or ethical obligation to the Court. The name at the foot of the submissions carries the whole of it, whoever or whatever produced the first draft.

Checking with another chatbot does not count

Paragraph 17 says the verification must not be carried out solely with an AI tool. Victoria’s note puts it more bluntly: “One AI tool cannot be used to confirm the content generated by another AI tool.” The Law Society of NSW guide recalls Mata v Avianca, the New York case in which a lawyer asked ChatGPT whether the cases it had cited were real, and was told they were.

The local record is no better. The same guide cites Dayal, a Federal Circuit and Family Court matter after which the Victorian Legal Services Board + Commissioner varied a practitioner’s practising certificate, and Murray v Victoria in the Federal Court, where a junior solicitor’s footnotes, found through Google Scholar, cited reports that mostly did not exist or were cited wrongly. The Court found that a failure to supervise her work adequately had contributed.

Mata v Avianca · New York

A lawyer asked ChatGPT whether the cases it had cited were real, and was told they were.

Dayal · Federal Circuit and Family Court

Afterwards the Victorian Legal Services Board + Commissioner varied a practitioner's practising certificate.

Murray v Victoria · Federal Court

A junior solicitor's footnotes cited reports that mostly did not exist or were cited wrongly, and a failure to supervise her had contributed.

Supervision is the part a practice can actually organise. A written rule on who may use which tool, and who checks the output before it is filed, is the control the regulators keep asking for. Our AI policy template is one place to start writing it.

Expert reports need leave before AI touches them

Paragraph 19 starts from what an expert report is for: the opinion of the expert, and the reasoning that produced it. Paragraph 20 therefore bars using AI to draft or prepare any part of an expert report without prior leave of the Court, and paragraph 24 puts the burden on the lawyers, who must draw the note to the expert’s attention when instructing.

The leave application in paragraph 21 asks for more than the one for annexures. Besides the use, the program and version, the settings and the benefit, it must identify any documents that it is proposed to submit to the AI program. That last item is the data question again, asked by the Court before the fact rather than after it.

If leave is granted

Paragraph 22 then requires the expert to disclose in the report which parts were prepared with AI, and with which program and version. The expert must also keep and annex a record of how the tool was used, such as the prompts, default values and variables, unless the Court dispenses with it. Where a code of practice binding the expert deals with AI, the report must say so and annex it.

That record is a fair test of any setup. A chatbot’s own history may hold more than the annexure does, and how long it keeps it depends on the plan: our guide on whether Claude trains on your data sets out what Anthropic keeps under each one.

Paragraph 23 brings the leave application forward for two kinds of report. The first is a report served in a professional negligence claim under rule 31.36 of the Uniform Civil Procedure Rules 2005. The second is a report referred to under section 315 of the Workplace Injury Management and Workers Compensation Act 1998 in a claim for work injury damages. For both, leave is sought at the first directions hearing.

What must not leave the office first: paragraph 9A

This is the part of SC Gen 23 with nothing to sign and the most to lose. Paragraph 9A lists four kinds of information that must not be entered into any generative AI program unless the practitioner responsible for the proceeding is satisfied of three things.

1. Information subject to suppression or non-publication orders.
2. Material covered by the implied Harman undertaking, which stops information produced under compulsion being used outside the proceedings without leave.
3. Material produced on subpoena.
4. Any material that a statute prohibits publishing.

The three conditions are cumulative. The information must stay within the controlled environment of the platform, with confidentiality restrictions on the supplier so that it is not made public and not used to train any large language model. It must be used only in connection with that proceeding. And it must not be used to train the program itself or any large language model.

The test is about the platform, not the text

Every one of those conditions describes where the material goes and what the supplier may do with it. None of them describes the material itself. That is why editing cannot satisfy paragraph 9A: subpoenaed payroll records with the names swapped for labels are still material produced on subpoena, and the Harman undertaking still attaches to them.

It also means the account matters more than the prompt. A consumer chatbot with training switched on fails the first condition before anyone types. An enterprise service with contractual confidentiality and no training may pass it, which is why the Victorian note tells court users to check the contract or the privacy settings of a closed tool before relying on it. Our Copilot guide reads one of those contracts line by line.

Ordinary client confidences sit under rule 9

Most of a litigation file is not suppressed, subpoenaed or restricted by statute. It is simply confidential, and for that the note leaves the work to the Conduct Rules. The Law Society of NSW guide, updated in January 2026, reads rule 9 as meaning that client information placed in a publicly available AI system is likely to breach confidentiality, and that the client may lose privilege.

The same guide makes the Harman point in so many words: material produced under compulsion must not be disclosed when using generative AI. A joint statement from the Law Society of NSW, the Victorian Legal Services Board + Commissioner and the Legal Practice Board of Western Australia, issued on 6 December 2024, says lawyers cannot safely enter confidential, sensitive or privileged client information into public chatbots at all.

What the Conduct Rules do allow is disclosure the client authorises, and an AI clause in the costs agreement is the cheapest place to get that authority in writing.

The Privacy Act adds its own layer for the personal information in the same file, including whether the provider is overseas. That part is covered in the Privacy Act guide, with APP 6 and APP 8 side by side.

Where the NSW Supreme Court AI practice note applies

SC Gen 23 is a Supreme Court document, but its reach is wider. The Land and Environment Court issued its own practice note in almost identical terms, signed by its Chief Judge on 28 November 2024, which commenced on the same day, 3 February 2025. Its version also treats a chronology generated from original source documents as outside the definition of generative AI.

The Local Court followed later. Its practice note, issued on 12 December 2025, commenced on 12 January 2026 and adopts SC Gen 23 in its current form and as it may be amended. A solicitor preparing a character reference for a Local Court sentence hearing now works to the same paragraph 13 as one filing an affidavit in the Supreme Court.

The Law Society of NSW keeps a table of court protocols on AI, current as at 14 May 2026, which also lists the District Court, NCAT and the Personal Injury Commission with their own documents. Check the one for your forum before filing, because a tribunal’s procedural direction can differ in detail from the Supreme Court text.

41,304

Who has to comply

The audience is large. The Law Society’s 2024 National Profile of Solicitors counted 41,304 practising solicitors in NSW at 31 October 2024, 42% of the 97,500 across Australia. Nationally, 78% of private law practices were sole practices, which matters here more than it seems.

In a sole practice the person who drafts, checks and signs is one person, and so is the person who decides which tool a file goes into. Nobody else is in a position to notice that a subpoenaed bundle went into a chatbot last month. Insurers have started asking whether a practice uses AI at all, as our cyber insurance guide explains.

Federal Court, Victoria and Queensland: the same question, asked differently

Outside NSW the rules are younger and mostly gentler in form, but they point the same way. None of them copies the NSW affidavit disclosure word for word. Each asks, in its own terms, that a person can account for how AI was used on a document the court receives, and the Federal Court’s list of information to keep out is wider than the NSW one.

court and document	date	what it asks
Supreme Court of NSW, SC Gen 23	commenced 3 February 2025	a disclosure in every affidavit, witness statement and character reference
Supreme Court of Queensland, Practice Direction 5 of 2025	signed 24 September 2025	a named individual responsible for written submissions
Federal Court, GPN-AI	signed 16 April 2026	a disclosure at the start of evidence where AI summarised or analysed what a witness relies on
Supreme Court of Victoria, SC Gen 25	commenced 14 May 2026	identify the AI portions and explain how they were verified

Victoria: be ready to point at the AI parts

SC Gen 25 replaced the Court’s 2024 guidelines for litigants on 14 May 2026. It allows court users to prepare documents with AI if they comply, and at paragraph 7.6 says they must be prepared to identify the specific portions produced with AI and explain how the output was verified. Paragraph 7.5 adds that the Court may direct them to provide further information.

On data, paragraph 6.8 tells court users not to enter confidential or sensitive information, including information under a suppression or non-publication order, into a public AI tool. For closed tools, paragraph 6.9 asks them to satisfy themselves, by reviewing the contract or the settings, that what they enter stays in a secure environment.

Queensland: a name at the end of the submissions

Practice Direction 5 of 2025, signed by Chief Justice Bowskill on 24 September 2025, takes a different route. Written submissions must name the individual practitioner who takes responsibility for them, and naming the firm on the record is not enough. By putting a name there, the practitioner tells the Court that the references have been verified.

The consequence is written into the direction itself. A practitioner whose submissions cite cases or legislation that do not exist may be referred to the Legal Services Commissioner, or asked to show cause why a costs order should not be made against them personally.

The Federal Court’s GPN-AI

Chief Justice Mortimer signed GPN-AI on 16 April 2026. It applies to everyone who appears before the Court or files documents with it, including third parties producing documents under subpoena, and at paragraph 2.3 expects all of them to be able to tell the Court what generative AI was used, how, and for what purpose.

Its disclosure rule is aimed at evidence. Under paragraph 4.10, use of AI must be disclosed where it summarised or analysed information a witness relies on, created images or recordings put before the Court, or might affect admissibility. Paragraph 4.11 says the disclosure goes at the start of the document and says where and how AI was used.

The data rule is broader than paragraph 9A. Paragraph 4.14 covers information under confidentiality, suppression or non-publication orders, but also privileged information, material under the implied undertaking, and anything otherwise confidential or private. Paragraph 4.15 warns that even a ringfenced tool may breach the implied obligation if its outputs are later used for another purpose.

If protected material has already gone into a chatbot, the next questions are about breach rather than procedure, and they are worked through in our guide on putting client data into ChatGPT.

A file note before and after, on version 0.2.8

Paragraph 9B lets a practitioner ask AI for a chronology, subject to paragraph 9A. Below is an invented file note of the kind a litigation solicitor might want turned into a timeline, and the AFTER is what Nonimo 0.2.8 returned for it on 23 September 2026, on Mac and on Windows, with nothing edited by hand.

BEFORE  File note, 14 August 2026
        Matter: Kowalczyk v Birchgrove Joinery Pty Ltd, 2026/00184512
        Client: Ms Irena Kowalczyk, DOB 03/05/1979, mobile 0491 570 159,
        irena.k@example.com
        Birchgrove Joinery Pty Ltd (ABN 30 537 218 490) produced its payroll
        records on subpoena.
        Mr Declan Hurst, the site manager, says the only Year 10 apprentice
        on the Penrith job saw the fall. The Court has suppressed the
        apprentice's name. Draft a chronology.

AFTER   File note, 14 August 2026
        Matter: [PERSON_1] v [COMPANY_1], 2026/00184512
        Client: [PERSON_2], DOB [BIRTH_DATE_1], mobile [PHONE_1],
        [EMAIL_1]
        [COMPANY_1] (ABN [ABN_1]) produced its payroll
        records on subpoena.
        Mr [PERSON_3], the site manager, says the only Year 10 apprentice
        on the Penrith job saw the fall. The Court has suppressed the
        apprentice's name. Draft a chronology.

Nonimo works on the Mac or Windows computer that already holds the file, and the Australian home page shows what the key press looks like on a practice’s desk. When someone selects text and presses that key, it swaps the identifiers it recognises for labels, shows every change so any of them can be undone, and keeps the table linking each label to its value encrypted on that same computer.

What no label covers is the matter itself. The payroll records are still described as produced on subpoena, and the apprentice whose name the Court suppressed is still the only Year 10 apprentice on the Penrith job. Under paragraph 9A this note could only go to a platform that meets all three conditions, labels or no labels. Our NDIS case note guide works through the same exercise: reading what the story gives away once the identifiers are gone.

What it keeps on the computer is set out on Nonimo’s security page, and the licence terms on the licence page.

Before you file: a checklist for SC Gen 23

1. Name the forum’s document. SC Gen 23 in the Supreme Court and, by adoption, the Local Court; the Land and Environment Court’s own note; the Federal Court, Victorian and Queensland documents elsewhere.
2. Sort the file before anyone prompts. Mark what is suppressed, subpoenaed, produced under compulsion or restricted by statute. That material stays away from any tool that fails paragraph 9A.
3. Record the tool and the account. The program, its version and whether training is off, because paragraphs 15 and 21 ask for exactly that and paragraph 9A turns on it.
4. Keep AI out of the witness’s words. Chronologies and summaries are fine. Drafting or rephrasing the evidence is not, and the disclosure in the affidavit has to be true when it is sworn.
5. Verify by hand. Every citation and every reference to evidence in the submissions, checked against the source, never against another chatbot.
6. Brief the expert. Paragraph 24 makes passing the note on the lawyer’s job, and leave comes before the report is written, not after.

The list is short because the note is. What makes it hard is that items 2 and 3 happen weeks before filing, usually on a busy afternoon, and nothing in the document finally signed will show whether they were done. Item 3 turns on the plan. For Gemini, whether a workplace plan switches training off, and who may still review conversations, is covered in a separate guide.

The declaration is the last step, not the first

The disclosure in an affidavit takes one sentence, and for most deponents it is the only part of SC Gen 23 they ever sign. It is also the easiest to get right, because it describes one document at one moment.

Paragraph 9A describes everything that happened before that moment, across every tool anyone in the practice opened. That is where the preparation belongs, and it starts with one question about each file: is anything in here suppressed, subpoenaed, compelled or restricted, and if so, which platform may it go to? The guides on using AI with client data are written so you can weigh that question without us.

Sources

Every page below was open in front of us on 23 September 2026.

• Supreme Court of NSW, Practice Note SC Gen 23, Use of Generative Artificial Intelligence (Gen AI), issued 28 January 2025 by Chief Justice Bell, replacing the version of 21 November 2024, commencing 3 February 2025. Paragraphs 6 to 8 on scope and risks, 9A and 9B on restricted material and permitted uses, 10 to 15 on affidavits and the disclosure, 16 to 18 on submissions, 19 to 25 on expert reports and 26 on review.
• Supreme Court of NSW, Generative AI, last updated 23 March 2026, with the Chief Justice’s statement of 17 November 2025 inviting submissions on the practice note by 18 December 2025.
• Land and Environment Court of NSW, Practice Note, Use of Generative Artificial Intelligence, signed by the Chief Judge on 28 November 2024, commencing 3 February 2025. The same structure as SC Gen 23, with chronologies generated from source documents excluded from the definition.
• Local Court of NSW, Practice Note, Generative Artificial Intelligence, issued 12 December 2025, commencing 12 January 2026, adopting SC Gen 23 in its current form and as amended.
• Supreme Court of Victoria, Practice Note SC Gen 25, The Use of Artificial Intelligence by Court Users, issued and commencing 14 May 2026. Paragraphs 6.8 and 6.9 on public and closed tools, 6.10 and 6.11 on evidence, 7.4 on verification, and 7.5 and 7.6 on identifying the AI portions.
• Supreme Court of Queensland, Practice Direction Number 5 of 2025, Accuracy of References in Submissions, 24 September 2025. The named responsible person, the verification it certifies, and the referral and costs consequences.
• Federal Court of Australia, Use of Generative Artificial Intelligence Practice Note (GPN-AI), signed by Chief Justice Mortimer on 16 April 2026. Paragraph 2.3 on being able to say what AI was used, how and why; 3.1 on who it applies to; 4.10 and 4.11 on disclosure in evidence; 4.14 and 4.15 on confidential, suppressed, privileged and private information; and footnote 7 on closed tools.
• Law Society of NSW, A solicitor’s guide to responsible use of artificial intelligence, updated January 2026, page 6. Rule 9 and privilege, the Harman undertaking, and the cases of Dayal, Mata v Avianca and Murray v Victoria.
• Law Society of NSW, Court Protocols on AI, current as at 14 May 2026. The list of NSW, federal and interstate courts and tribunals with AI documents.
• Victorian Legal Services Board + Commissioner, Statement on the use of artificial intelligence in Australian legal practice, 6 December 2024, issued jointly with the Law Society of NSW and the Legal Practice Board of Western Australia. Confidential, sensitive or privileged information and public chatbots.
• Law Society of NSW, 2024 National Profile of Solicitors, prepared by Urbis with data at 31 October 2024. The 41,304 practising solicitors in NSW, the 97,500 nationally, NSW’s 42% share, and the 78% of private practices that were sole practices.

The file note in this guide is invented. The names, the company, the court file number, the email address and the mobile number belong to nobody we know of, and the ABN was generated to pass its checksum.