Case: The Food Improvers Pty Ltd v BGR Corporation Pty Ltd [2006] FCA 1238 
Outcome: referred to
defendants and Mr Frederick Gulson (who I will refer to jointly just as 'the defendants' in this judgment) move on an application that the court be closed during part of the evidence to be given by Mr Gulson while he is being cross-examined in relation to mental health issues or any psychiatric condition from which he may, or may have been thought to have, suffered. The circumstances in which Mr Gulson's psychiatric condition, real or perceived, may be relevant in the trial which I have begun to hear were discussed by me in my reasons for judgment of 10 July 2006 ( The Food Improvers Pty Ltd v BGR Corporation Pty Ltd [2006] FCA 1238). In essence, there is an issue between the parties on the pleadings that in late May and June 2005 Mr Gulson, who is one of the directors of the present defendants and the person currently with the day to day control of the first defendant, BGR Corporation Pty Limited, was said to have behaved in a way which was described by various witnesses or documents as angry, rude, loud and involved a lack of self-control. At this point I have heard an opening and the affidavits of the second plaintiff, Mr Bax, have been read. They, together with some of the documentary material within them, suggest that there will be a deal of evidence in the proceedings concerning the way in which Mr Gulson was behaving, particularly at the time of critical meetings in late May 2005 and thereafter. The way in which it was put, I described in my earlier judgment as going to the manner in which Mr Gulson was exercising his powers as the person controlling approximately 70 per cent of the shares in BGR and thus the group of companies of which BGR is the relevant principal. Mr Bax's company The Food Improvers Pty Ltd, was a shareholder in control of shares constituting about 22 per cent of the voting and issued capital in BGR. The defence of the companies which Mr Gulson controls to the plaintiffs' claim asserts that the allegations concerning Mr Gulson's conduct amount to a ruse to deflect responsibility for the refusal by Mr Bax and a senior employee of the BGR group, Mr Gobert, in late May 2005 to continue to participate in business travel and arrangements overseas that were of significance with the BGR group's business. The defendants assert that it was Mr Gobert and Mr Bax who were supposedly completely unprofessional, intentionally disobedient, in serious breach of their duties and wilfully neglectful in the discharge of their obligations under their employee or consultancy arrangements with the BGR group. Mr Gulson has already been a very prominent witness associated with a number of pieces of, what I have been told, is other public interest litigation. His role has been public. He has not only given his evidence in public but his role has been acknowledged in public judgments. The issue raised about his state of mental health has been the subject of my judgment given in open court; that is, it has been available on the internet: The Food Improvers Pty Ltd v BGR Corporation Pty Ltd [2006] FCA 1238. As Ms Cook's affidavit revealed, at least one other person who was a member of the public exercised her right to be present in court and to hear and see what was said in open court on that earlier occasion. That that involved, among other things, the reading of the evidence and the recounting, as I did in my ex tempore judgment, of the nature of the evidence and issues involved in the then application together with the identity of Dr Newman Harris and of the Caritas Centre to whom Mr Gulson in part confided his own medical care. In those circumstances I find it difficult to see how I could now cast a veil over evidence that dealt with the issue of Mr Gulson's alleged medical condition at the time in May, June and July 2005 to which I understand the medical records and medical evidence may be directed. There will also be, as there already is in the affidavits of Mr Bax which have been read, evidence making assertions about or observations of Mr Gulson's behaviour and apparent state of health. For the Court to now seek to remove from the open administration of justice some part or parts of the evidence would in my opinion be for it to do something which was not necessary in the interests of justice. Mr Gulson has not said that he would not be able to come to this Court or have his case litigated. He has not said, and there is no evidence, that he would not be able to give evidence in other cases. The fact that it may be embarrassing to him and no doubt distressing and upsetting to him to have confidential medical records about observations of him and his perceived mental condition made public is not a reason in itself to suppress either by closure of the court or some other means under ss 17(4) and 50 or in the exercise of the inherent powers of the court the availability of public access to everything that is sought to be raised about those matters. It seems to me that his behaviour in the case on the pleadings and arguments as I have outlined them, understood them and had been told about them in July this year are of fundamental importance in determining a material issue. This has already been exposed in open court. And the broad thrust of the allegations about that condition have been revealed including by Mr Gulson himself saying that he checked himself into the clinic in early July 2005 as was tendered in the application before me on the previous occasion.