Dr Leo Shanahan v Jatese Pty Ltd: in Re Chynoweth and section 128 of the Evidence Act 1995 (NSW)

In Dr Leo Shanahan v Jatese Pty Ltd, the dispute revolved around the admissibility of evidence pursuant to section 128 of the Evidence Act 1995 (NSW). Dr Shanahan, the plaintiff, sought to have evidence introduced that was relevant to the credibility of a witness, Jatese Pty Ltd, who had given testimony in the case. The defendant contested the admissibility of this evidence on the basis that it was being introduced too late under the provisions of section 128 of the Act.

The court had to determine whether section 128(1) of the Evidence Act 1995 (NSW) applied in this situation. This section generally prohibits the admission of evidence that would otherwise be inadmissible on the basis of relevance, hearsay, or other grounds, unless the evidence is relevant to the credibility of the witness who gave it. The central issue was whether the section precluded the introduction of evidence that was objected to on the basis that it had been presented too late, after the witness had already testified.

The court concluded that section 128 does not apply in circumstances where an objection is made to evidence on the basis that it has been given too late, rather than on grounds of relevance, hearsay, or another exclusion under the Evidence Act. The court reasoned that section 128 is specifically concerned with the admissibility of evidence that is relevant to the credibility of a witness and does not address the timing of the evidence's presentation. As such, the objection raised by the defendant was not one that fell within the scope of section 128.

In light of this reasoning, the court determined that the objection to the admissibility of the evidence was not precluded by section 128. The court therefore allowed the evidence to be considered.