A Federal Court judge has ordered parties in a Fair Work dispute to confer with an expert about the use of AI to prepare their evidence for mediation and trial.
Justice Michael Lee made the creative order in the Victorian registry, under Section 37P(2) of the Federal Court of Australia Act 1976 (Cth), in a dispute involving fast-food giant McDonald’s allegedly failing to pay managers for work performed before and after shifts.
Among Justice Lee’s orders was that by 6 November 2026 the parties must investigate whether AI could help collate and analyse data; prepare chronologies and document summaries; and manage and interpret documents.
The parties must produce a report and/or draft protocol to the court of the results, and refer to the court’s General Practice Note on the use of use of generative AI issued in April.
In his 20-page reasons delivered on 28 August, Justice Lee began by pointing out that generative AI “has the potential to further the overarching purpose of the civil practice and procedure provisions by increasing efficiency in the conduct of litigation and reducing legal costs”.
He said AI presented an opportunity much more interesting that whether a machine could draft a competent submission or find a case more quickly.
“It allows us to reconsider entrenched processes which developed in a world constrained by the capacity of human beings to collect, collate and synthesise information,” he said.
“Those constraints are disappearing rapidly and there is no reason to assume that procedures which developed in response to them possess some immutable virtue.”
Justice Lee said AI could allow lawyers to spend more time exercising professional judgment, and judges to spend more time identifying what really mattered and making decisions according to law.
He said that proposition had a very practical connection with the overarching purpose.
“The just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible is not furthered by requiring highly skilled solicitors, or armies of persons working under their supervision, to spend enormous amounts of time performing mechanical tasks of collection and synthesis if technology can perform those tasks reliably and at a fraction of the cost,” he said.
He said the current proceeding was an obvious occasion to consider whether this could be done.
“If there is to be a meaningful attempt at non-curial resolution, the applicants require a sufficient understanding of such matters as the number and circumstances of the group members they represent, their positions and applicable classifications under awards or enterprise agreements, whether they were employed on a full-time, part-time or casual basis, the shifts disclosed by the available business records and relevant remuneration information,” he said.
Justice Lee said the difficulty was not that the primary information did not exist.
“It is that the information is dispersed throughout a miscellany of business records, apparently maintained in different repositories and in different forms, and must somehow be collected, related to particular individuals and periods, analysed and synthesised before it becomes useful,” he said.
“The relevant task is to turn an enormous body of primary information into something intelligible enough to permit the parties, and ultimately the court, to understand what it shows.”
Assessing the “patchwork” of business records filed so far in the case was “precisely the sort of problem which requires some imagination in contemporary case management”, he said.
“The overarching purpose is not served by treating the historical cost of performing a task as though it were an unavoidable characteristic of the task itself,” he said.
“The scale of modern litigation makes that inquiry increasingly important.
“Proceedings of this kind generate and depend upon quantities of primary information which no judge, lawyer or party could sensibly absorb in its undigested form.
“The administration of such a case therefore necessarily involves processes of organisation and synthesis.
“The question is whether those processes should continue to be undertaken substantially by traditional manual methods, at very considerable expense, when appropriately designed technology may be capable of performing at least some of the work more quickly and cheaply.”
Justice Lee said the courts had spoken for many years about proportionality, efficiency and the reduction of unnecessary cost.
“Those aspirations will achieve little if, when confronted with a new means of performing an old and expensive task, courts and parties simply reproduce familiar processes because they are familiar,” he said.
“Complex litigation will only become manageable if case management is prepared to be inventive about how vast quantities of information are reduced to the material which actually matters.
“That is especially so in a representative proceeding where the costs of unnecessary process may be multiplied.”
He said AI did not provide a complete answer, and the court should not entrust any subjective adjudicative task to a machine.
“The objective is to use technology to perform work which does not itself require human judgment, so that professional and judicial judgment can be concentrated upon the matters which do.
“Any technological process adopted in this proceeding would therefore have to preserve traceability to the primary records, permit its outputs to be tested and corrected (to some level), protect privileged and confidential material where necessary, and remain subject to appropriate human supervision.”
Justice Lee said he was not asking the parties to become software developers, nor prescribing the technology or a provider, nor determining any eventual protocol.
“What matters at this stage is that the use of AI in this case be examined seriously, cooperatively and with an eye to the overarching purpose, rather than dismissed because the conventional alternative is known.”
Read the case here.
See QLS guidance on AI use here.
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