NSW Supreme Court Practice Note SC Gen 23

What happened

In November 2024 the Supreme Court of New South Wales issued a practice note on the use of generative AI in proceedings. After an amended version was issued on 28 January 2025 by Chief Justice A S Bell, Practice Note SC Gen 23 commenced on 3 February 2025. It includes a dedicated part on expert reports, which is the part recorded here.

The practice note defines generative AI as "a form of artificial intelligence that is capable of creating new content, including text, images or sounds, based on patterns and data acquired from a body of training material."

What the court did

Paragraph 20 provides: "Gen AI must not be used to draft or prepare the content of an expert report (or any part of an expert report) without prior leave of the Court."

An application for leave must identify, among other things, the proposed use, "the Gen AI program (including the version) that will be used," whether the program has privacy protections, the benefits expected, and the documents that would be submitted to it. If leave is granted, paragraph 22 requires the expert to "disclose in the report what part(s) of it was prepared using Gen AI" and to "keep records and identify in an annexure to the report a record of how the Gen AI tool or program was used." In professional negligence claims and work injury damages cases, leave must be sought at the first directions hearing.

Where it stands

The practice note remains in force. On 17 November 2025 the Chief Justice issued a statement that the practice note "will be periodically reviewed" and invited submissions from the profession by 18 December 2025. No amended version was located as of 2026-09-11. Other Australian bodies have since issued their own requirements, including the Administrative Review Tribunal's expert evidence practice direction. In England and Wales, the Civil Justice Council consulted in 2026 on requiring experts to explain their use of AI.

The obligation it engaged

The practice note writes several clauses of the Standard into a court rule. The records and annexure requirement in paragraph 22 corresponds to Clause 7, contemporaneous record: the expert must keep a record of how the tool was used and put it before the court. The disclosure requirement is Clause 8 in its strictest form, because disclosure is made to the court in advance and not only on request.

The leave application engages Clause 6, custody and confidentiality. The expert must say which documents would be given to the system and whether it protects them, which is the question Clause 6 asks before anything is submitted. By requiring the version of the program, the application also supports Clause 5, since a result can only be re-run against a known tool.

The default the practice note sets is abstention unless the court permits otherwise. That is stricter than the Standard, which permits use subject to its clauses. An expert working in New South Wales must meet the practice note first.

Sources

• Supreme Court of New South Wales · January 28, 2025
  Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI)
• Supreme Court of New South Wales · November 17, 2025
  Use of Generative AI: Practice Note Review (statement of the Chief Justice)
• Herbert Smith Freehills Kramer · July 2, 2026
  Civil Justice Council publishes update on consultation responses regarding use of AI for preparing court documents
• Moray & Agnew · April 2026
  AI content is not an expert opinion: Changes to requirements for Expert Reports at the Administrative Review Tribunal

What could not be confirmed

Whether the November 2025 review produced amendments to the expert report provisions was not established; none were located.