Court to distinguish Dayal [2024] FedCFamC2F 1166 (Dayal) on the basis that, in the present case, the fake cases were not referenced in the final hearing as the ALR had filed an amended application and outline of submissions. Counsel submitted that the ALR was profoundly embarrassed by the conduct and had taken steps to improve his knowledge of AI.
29 Counsel further submitted that the Practice Note issued by the Supreme Court of NSW has provided clarity on the subject of AI, and that people would not be assisted by another reexamination of the ALR's case which would only serve to embarrass him, even if he is not personally identified.
30 The Minister submitted that the ALR had failed to exercise adequate care in allowing submissions which contained false citations and false quotes to be filed. The Minister referred to the matter of Dayal in which her Honour Judge A Humphreys directed the referral of the solicitor in that matter to the Victorian disciplinary authorities in similar circumstances. It was submitted that the same course should follow in the present case. The Minister submitted that the misuse of artificial intelligence in legal proceedings was a matter of current public interest. It was submitted that such misuse would likely be a matter of increasing concern in future, and there was a public interest in ensuring the OLSC is aware of the misuse of AI in cases as they arise.
31 In oral submissions, the Minister submitted that Dayal should not be distinguished and that the conduct of the ALR, in providing fake quotes from the Tribunal's decision as well as fake case citations to the Court, went beyond the conduct of the solicitor in Dayal. It was submitted that such conduct would continue to occur and must be "nipped in the bud".
32 The Court notes that in Dayal, the solicitor in that matter provided the Court with a list of fictional authorities and case summaries which had been generated using an AI tool within the LEAP Practice Management Software. Her Honour, citing the USA District Court case of Mata v Avianca Inc, 678 F. supp. 3d 443 (S.D.N.Y. 2023), set out the potential harms that could result from the filing of submissions which contain false information. Her Honour referred to the duties of legal practitioners and considered that the solicitor in that matter had breached the professional standards expected of them. Her Honour accepted that the solicitor's apology was genuine and that the conduct would unlikely be repeated, but nevertheless considered it in the public interest that the relevant regulatory authority (the Victorian Legal Services Board and Commissioner) was made aware of the professional
