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A Federal Court justice is keen to put artificial intelligence to the test, encouraging the parties in the McDonald’s class action to harness the technology to sift through an “enormous body” of material.
Justice Michael Lee used the 16th Sir Harry Gibbs Memorial Oration earlier this month to make a case for artificial intelligence doing more of the work that does not require human judgement, allowing legal practitioners to spend more time “doing the work which does”.
This is especially important in complex litigation, which Justice Lee observed is frequently plagued by the “extraordinary growth” in the number of materials received, the often “oppressive” nature of written submissions, and expert reports that extend to “hundreds of pages”.
“Decisions whose legitimacy depends upon the exercise of human judgment within the traditions I have described should not be delegated to AI; but there is equally little sense in insisting that human beings continue to perform, at enormous expense, tasks involving such judgment which machines may now be able to perform incomparably more efficiently,” Justice Lee said in his speech.
Three days later, Justice Lee encouraged the parties behind a McDonald’s employment class action to obtain the “appropriate specialist assistance” to collate material for the purpose of mediation, and, “if necessary, for the efficient conduct of the trial”.
The class action concerns alleged failures to pay managers employed at corporate- and franchise-owned McDonald’s restaurants for work said to have been performed before and after rostered shift times.
It has been set down for a 10-week trial in early 2028.
The proceedings will need to canvas the employees’ roles, applicable classifications under awards or enterprise agreements, the shifts according to business records, and relevant remuneration material.
In his recent judgment, Justice Lee said the difficulty of collating material is that it is “dispersed through 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”.
Without a reasonably reliable picture of these matters, Justice Lee said the upcoming mediation would have “little prospect” of success.
It is in this context that Justice Lee is determined to use the proceedings as a “lodestar” for how artificial intelligence can be used to achieve just resolution as quickly, inexpensively and effectively as possible.
“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,” Justice Lee said.
Justice Lee insisted he was not asking the parties to become “software engineers”, but rather to identify a secure and reliable methodology to collate information. He added there were “existing commercial” AI models and other technology tools that could provide a solution.
“I am not prescribing the technology, selecting a provider or determining in advance the form of any eventual protocol,” Justice Lee said.
“Those matters require expertise which the court does not profess to possess and should not be developed with the parties.
“What matters at this stage is 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.”
In the speech, Justice Lee said that much of what occupies the time of legal practitioners is the acquisition and organisation of information, but stressed this was not at the heart of what they do.
What matters instead, he said, is the capacity to exercise judgement.
“To understand what facts really matter, to distinguish from the merely available, to appreciate the consequences of competing choices, and to decide what should be done in circumstances in which knowledge of all the relevant information does not itself supply the answer,” he said.
As long as judgement remains with a human, Justice Lee said AI presents an opportunity for humans outside of collating and summarising material.
“The more powerful the instrument becomes, the more effectively we use it to relieve judges and lawyers of work which does not require judgment, the more important it becomes to understand what judgment is, why it must remain human, and the purposes and values it exists to serve,” Justice Lee said.
Citation: Rogers v McDonald’s Australia Ltd (AI-use) [2026] FCA 1264.
Speech: All the Right Notes: Artificial Intelligence and the Future of the Common Law.
