Federal Court of Australia

Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00pm on 7 May 2025, First Nations Legal & Research Services must provide to Judicial Registrar Daniel and the “Required Parties” each of the documents in the list of materials prepared by First Nations Legal & Research Services.

2.    In paragraph 1, the “Required Parties” are:

(a)    the Applicant;

(b)    the First and Second Respondents;

(c)    the First Nations Respondents: Mr Cain Chaplin, Ms Jeanette Lydia Crew, Mr John Jackson, Mr Raymond Kennedy, Ms Janice Lorraine Muir, Mr Barry Pearce, Mr Stewart Taylor, Mr Wayne John Webster and Mr Neville Whyman; and

(d)    NTSCorp Limited.

3.    Documents under paragraph 1 are provided on a confidential basis, are not for publication, and are to be accessed only by the Required Parties and their legal representatives and retained experts and no others until further order of the Court. 

4.    By 4.00pm on 5 May 2025, any Required Party who wishes to seek redactions of the documents to be provided under paragraph 1, or claims privilege in relation to any of the documents, or parts of them, must file and serve an application with supporting evidence seeking such relief.

Costs

5.    The solicitors for the applicants, Massar Briggs, shall personally pay the costs of the respondents, on an indemnity basis, incurred through the firm’s use of artificial intelligence in the preparation of documents served on the respondents, namely the defective draft amended Form 1 application and the defective document entitled ‘Applicant’s Summary of Native Title Claim Group and Decision Making Process’. Such costs shall be paid forthwith upon their being taxed or agreed.

Potential or actual conflict

6.    Any party, other than the Commonwealth of Australia, who wishes to put on evidence or make submissions regarding the potential or actual conflict of interest or conflict of interest and duty of Mr Jason Briggs of Massar Briggs in respect of him or that firm representing the native title claim group in the proceeding must do so by 4.00pm on 7 May 2025.

7.    If the Commonwealth of Australia wishes to put on evidence or make submissions regarding the potential or actual conflict of interest or conflict of interest and duty of Mr Jason Briggs or Massar Briggs in respect of the native title claim group in the proceeding it must do so by 4.00pm on 21 May 2025.

8.    Any responsive evidence or submissions by Mr Briggs in respect of material filed pursuant to paragraphs 5 or 6 above must be filed by 4.00pm on 11 June 2025.

Amended Form 1

9.    The Applicant has leave to file an amended Form 1 that corrects footnote errors and changes the named members of the Applicant, marked up to show the alterations from the presently filed Form 1, by 4.00pm on 7 May 2025.

AND THE COURT NOTES THAT:

A.    As directed, Arma Legal have sent a communication to his Honour Justice Murphy’s chambers and to the Required Parties identifying the apical ancestors in the proposed Barapa Barapa native title claim.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

MURPHY J:

1    The substantive proceeding in this matter is a native title determination application brought by Mr Gary John Murray and others on behalf of the Wamba Wemba native title claim group, in which Massar Briggs Law are the solicitors for the applicant. Before the Court is an application regarding the filing of court documents by Massar Briggs Law which contained incorrect citations arising from the use of artificial intelligence (AI) in their preparation.

2    The matter came before me at a case management conference on 16 April 2025. I heard the parties, made the attached orders, and provided ex tempore reasons which I did not publish. Following recent discussions with colleagues there seems to be a growing problem regarding false citations in documents prepared using AI. In the circumstances I have decided that it is appropriate to publish reasons, revised from transcript.

3    The background is that the applicant filed a document titled ‘Applicant’s Summary of Native Title Claim Group and Decision Making Process’ (Applicant’s Summary) on 23 January 2025. The document contained numerous footnotes referencing anthropological and historical reports and papers relied upon by the applicant.

4    First Nations Legal and Research Services (FNLRS) was tasked with producing the footnoted documents. FNLRS filed a report with the Court in which it stated that its staff had conducted extensive searches of the FNLRS database and then in publicly available databases to locate the footnoted documents, which had taken its staff substantial time. Ultimately FNLRS concluded that most of the cited documents did not exist, and that others existed but were incorrectly cited. FNLRS described the citations as “fabricated”, which I understood as a reference to the tendency of Generative AI to ‘fabricate’ or ‘hallucinate’ information that looks accurate and reliable but that is not based in fact.

5    Judicial Registrar Daniel made orders requiring Massar Briggs Law to file any affidavit evidence upon which it wished to rely to explain how the Applicant’s Summary was prepared and as to the supervision of the junior solicitor who had prepared it. Massar Briggs Law filed two affidavits:

(a)    an affidavit of an inexperienced junior solicitor, working on a restricted practising certificate in the employ of Massar Briggs Law, dated 13 April 2025. It is unnecessary to name the deponent; and

(b)    an affidavit of Mr Jason Briggs, the principal solicitor of Massar Briggs Law, dated 13 April 2025.

6    The junior solicitor deposed that she had prepared the footnotes to Schedule F to the Amended Native Title Determination Application dated 12 November 2024 (Amended Form 1 Application) while she was working out of the office and when she did not have access to the physical or electronic copies of the footnoted documents held in Massar Briggs Law’s office. She stated that to produce the document citations for footnoting in Schedule F she used the Google Scholar search tool. Upon Google Scholar producing a list of results, and after giving the results some consideration, she used the first result as the appropriate footnote, doing so in the belief that that was the correct document citation. Subsequently, she was asked to prepare the footnotes to the Applicant’s Summary, many of which she simply transposed from the Amended Form 1 Application and others she freshly created, again using Google Scholar.

7    She deposed that when concerns were raised by FNLRS about the possible use of AI to generate the references she attempted to replicate her search methods, but on those occasions Google Scholar produced different search results. She could not explain how or why that was so. She stated that she had regularly used Google Scholar during her university studies and that this was not a problem she had previously experienced. She apologised to the parties and to the Court for her error.

8    It seems likely that the false document citations arose through Generative AI, possibly associated with Google Scholar. The capacity of Generative AI to ‘fabricate’ or ‘hallucinate’ information is now widely appreciated.

9    Mr Briggs deposed as to the supervision provided to the junior solicitor in the preparation of the footnotes in the Amended Form 1 Application and Applicant’s Summary, and as to the checking of her work. He described that work as having been performed collaboratively between team members, but the substance of his evidence was that he was not aware that anyone had checked the junior solicitor’s work. Mr Briggs accepted that that it was an error on his part to allow collaborative work to be performed remotely and he described the failure to ensure that anyone checked the junior solicitor’s work as “an oversight error”. He expressed his regret for the inconvenience to the parties and to the Court.

10    In a ‘Notice to the Profession’ titled “Artificial intelligence use in the Federal Court of Australia” on 29 April 2025, the Chief Justice stated that the Court is keen to ensure that any Guideline or Practice Note regarding the use of Generative AI in proceedings before the Court appropriately balances the interests of the administration of justice with the responsible use of emergent technologies in a way that fairly and efficiently contributes to the work of the Court. Her Honour noted that the Court is presently considering the practices of other courts, consulting with litigants conducting their own proceedings and consulting with the legal profession, before it finalises its position on the use of Generative AI. The Court has not, at this stage, sought to impose a total prohibition on the use of Generative AI.

11    The Court’s position arises out of a recognition that the use of AI is a rapidly evolving issue in legal practice. It is apparent from the consultation with the profession which has taken place to date that many members of the legal profession use AI in some form, and that they see it as a useful tool in the conduct of litigation. I note that the Law Society of Western Australia recently ran a snapshot survey on how the legal profession in WA is using AI, doing so to assist the Supreme Court of WA with its consultation process. The results demonstrate that the use of AI in that State is increasingly common, with over 50% of survey participants incorporating it into their practice. The results also record that the most used safeguard to ensure the accuracy and ethical use of AI-generated legal content is human verification, by a lawyer: The Law Society of Western Australia, Summary of Results from the Law Society’s Use of Generative AI Survey, 2025.

12    Whilst the use of AI in the legal profession is growing, practitioners must be aware of its limitations. It is critical that legal practitioners use proper safeguards to verify the accuracy of the work produced. Any use of AI must be consistent with the overriding duty of legal practitioners as officers of the Court and their fundamental obligation to uphold, promote and facilitate the administration of justice. As stated by the Chief Justice in the Notice to the Profession:

…the Court expects that if legal practitioners and litigants conducting their own proceedings make use of Generative Artificial Intelligence, they do so in a responsible way consistent with their existing obligations to the Court and to other parties. Further, it is also expected that parties and practitioners disclose such use if required to do so by a Judge or Registrar of the Court.

13    In the Federal Circuit and Family Court of Australia decision Dayal [2024] FedCFamC2F 1166, a solicitor provided the Court with a list of fictional authorities and case summaries which had been generated using an AI tool. While accepting the solicitor’s apology as genuine, Humphreys J considered it in the public interest to refer the solicitor’s conduct to the Victorian Legal Services Board. Her Honour referred to the US District Court case of Mata v Avianca Inc, 678 F Supp 3d 443 (S.D.N.Y. 2023) in which Mr Mata’s lawyers filed submissions containing fake authorities generated by ChatGPT. The practitioners initially stood by the submissions when called into question by the Court and they were found to have acted with bad faith and in violation of various court rules. There, the Court said (at 448-449):

Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court’s time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.

14    Here, the applicant's solicitor’s use of AI in the preparation of two court documents has given rise to cost, inconvenience and delay to the parties and has compromised the effectiveness of the administration of justice. But I do not consider the use of AI in this case means that it is appropriate to refer the solicitors’ conduct to the Victorian Legal Services Board. Here an inexperienced junior solicitor was given the task of preparing document citations for an amended pleading, and did so while working remotely and without access to the documents to be cited. In attempting to cite the relevant documents she used an (apparently AI-assisted) research tool which she considered had produced accurate citations when she previously used it. And as soon as Massar Briggs Law was told of the false citations the problem was addressed. The junior solicitor and the principal solicitor have apologised or expressed their regret to the other parties and the Court, and there was no suggestion that they were not genuine in doing so.

15    The junior solicitor took insufficient care in using Googe Scholar as the source of document citations in court documents, and in failing to check the citations against the physical and electronic copies of the cited documents that were held at Massar Briggs Law’s office. The error was centrally one of failing to check and verify the output of the search tool, which was contributed to by the inexperience of the junior solicitor and the failure of Mr Briggs to have systems in place to ensure that her work was appropriately supervised and checked. To censure those errors it is sufficient that these reasons be published.

16    It is also appropriate to order that Massar Briggs Law personally pay the costs of the respondents, on an indemnity basis, incurred through the firm’s use of artificial intelligence in the preparation of documents served on the respondents, namely the defective Amended Form 1 Application and Applicant’s Summary, pursuant to s 85A(2) of the Native Title Act 1993 (Cth).

Associate:

Dated:    2 July 2025

Schedule

No: VID14/2022

Federal Court of Australia

District Registry: Victoria Registry

Division: General