Plaintiff v Defendants

Supreme Court of Victoria|2014-07-25|Before: DERHAM AsJ

PRACTICE AND PROCEDURE - Summons for production for inspection of documents - Whether documents are the subject of client legal privilege - Dominant purpose test - Evidence Act 2008 (Vic) ss 45, 75, 118, 119 and 131A.

1 The first defendant (SPI) has discovered three tranches of documents in this proceeding.[1] Tranche 1 was provided on 16 August 2013 (First List), tranche 2 was provided on 26 August 2013 (Second List) and tranche 3 was provided on 11 September 2013 (Third List). SPI provided a list of documents in relation to each tranche and identified in each list the documents that it objected to producing on the grounds of client legal privilege (privilege) in Schedule 1, Part 2 of each List.

2 Following receipt of the lists of documents, the plaintiff's solicitors (Maurice Blackburn) engaged in correspondence with the solicitors for SPI (Freehills)[2] seeking further clarification and explanation for the claims of privilege made. That correspondence is exhibited to the affidavit of Jennifer Patterson sworn on 25 November 2013 (the Patterson affidavit). In that correspondence, the plaintiff pressed for provision of affidavit material to support SPI's claim of privilege over some of the documents identified as privileged in the Lists. This was resisted by SPI. Ultimately, the plaintiff issued a Summons.

3 The dispute was foreshadowed in a directions hearing before J Forrest J on 13 September 2013. By order made that day his Honour referred the dispute to me.

4 On 24 October 2013 I made orders for the filing by the plaintiff of a Summons seeking inspection of identified documents in the three tranches of discovery made by SPI. This the plaintiff duly did. He applies for production for inspection of certain of the documents set out in Schedule 1 to his Summons dated 28 October 2013 (Summons). The Summons relies on a range of powers: rule 29.11 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules), s 33ZF of the Supreme Court Act 1986 (Vic) and s 55 of the Civil Procedure Act 2010.

5 For the reasons which follow, I have concluded that:

(a) In relation to the originals of attachments to the Bible, being items 1-34 and 52-57 in the Table of Disputed Documents annexed to these reasons, I conclude that these were prepared for multiple purposes, both privileged and non-privileged. It is not possible to conclude from the evidence that any one purpose predominated;

(b) In relation to the technical analysis documents identified as item numbers 68-71 in the Table of Disputed Documents, I conclude that SPI has not established that these were prepared for the dominant purpose of obtaining legal advice;

(c) In relation to the power point presentation (Document 39) in item 62 in the Table of Disputed Documents, I conclude that privilege has not been established with respect to its preparation; and

(d) In relation to the photographs in items 35-51 in the Table of Disputed Documents, I conclude that privilege has not been established with respect to the taking of the photographs.

6 This is the last of the group proceedings arising out of the Black Saturday bush fires that started on 7 February 2009. The writ, generally indorsed, was filed on 7 August 2012. It relates to the fire which commenced in proximity to the Murrindindi Sawmill in Wilhemina Falls Road at Murrindindi, Victoria. It caused substantial devastation (including loss of life) to areas situated to the south-east of the Sawmill, including Marysville, Narbethong, Buxton and Taggerty.

7 The plaintiff lived with his family in Woods Point Road, Marysville. His property, which included a bed and breakfast business called 'Nanda Binya', was destroyed and his wife and two boys died in the fires.

8 The claim is brought pursuant to the group proceedings provisions of the Supreme Court Act 1986 (Vic) by Mr Liesfield on behalf of group members who suffered personal injury (including death or injury to another person), property damage or economic loss. The defendants to the claim are the same as those of the Kilmore East Black Saturday bushfire proceeding,[3] namely:

(a) The first defendant, SPI, the power company responsible for the Murrindindi feeder line;

(b) ACN 060 674 580 Pty Ltd, which traded as Utility Asset Management (UAM), the electricity asset inspection company;

(e) The State of Victoria, vicariously liable by statute for the acts or omissions of members of the Victoria Police.[4]

9 The plaintiff alleges that the fire started as a result of the failure of a three phase feeder line (being an electricity conductor) on what is known as the Sawmill Span near the Murrindindi Sawmill (Feeder Line). SPI admits that the Feeder Line failed, but says that the fire started by reason of a human act before it failed. There is a wide range of alleged breaches of duty of SPI leading to the failure of the Feeder Line, including engineering failures that involve technical aspects of the attachment of the conductor to the pole (Pole 6 of the Sawmill Span), the placement of the insulator, and other matters.

10 The plaintiff relies on the affidavit of Jennifer Lea Patterson sworn 25 November 2013. This affidavit exhibits the extensive correspondence between Maurice Blackburn and Freehills.

(a) Karena Reid sworn 18 November 2013 (First Reid Affidavit), 2 December 2013 (Second Reid Affidavit) and 9 December 2013 (Third Reid Affidavit);

(b) Norman Drew sworn 18 November 2013 (Drew Affidavit);

(d) Kyriacos Karafotias sworn 18 November 2013 (Karafotias Affidavit); and

(e) Ross Stuart Clark sworn 18 November 2013 (First Clark Affidavit), 2 December 2013 (Second Clark Affidavit) and 9 December 2013 (Third Clark Affidavit).

12 These affidavits in combination and individually are made to prove the purpose or purposes of the preparation of the documents in question so as to establish privilege in respect of them.

13 There was no dispute between the parties as to the applicable legal principles.

14 SPI relies upon ss 118 and 119 of the Evidence Act 2008 (Vic), which relate to 'legal advice privilege' and 'litigation privilege', respectively.

15 Section 118, which concerns legal advice privilege, provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and the lawyer; or

(b) a confidential communication made between two or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person -

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

16 Section 119, which concerns litigation privilege, provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared -

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceedings (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is, or may be, or was or might have been, a party.

17 The issue that I am required to address is whether or not the documents in contention are confidential documents prepared for the dominant purpose of SPI's lawyers providing legal advice to SPI, or for SPI being provided with professional legal services relating to an anticipated or pending Australian proceeding.

18 SPI bears the onus of establishing that the documents were prepared for that dominant purpose. SPI asserts that it has done so. The plaintiff submits that where - as here - the documents are prepared for a corporation, the purpose of the corporation is clearly relevant and determinative. The purpose of any individual employee of the corporation who either requested the documents be prepared, or prepared the documents may inform an analysis of the purpose, but is secondary.

19 A dominant purpose is one that predominates over other purposes; it is the ruling, prevailing, most influential or paramount purpose.[5] If the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document.[6]

20 The starting point is to ask what were the intended uses for which the document was produced.[7] Where a document is brought into existence by a corporation, the relevant purpose is that of the corporation.[8] The corporate purpose may be determined by reference to the purpose of the officer or employee who directs that a document be produced, and it may also be necessary to examine the purpose of others in the corporate hierarchy.[9]

21 Ordinarily the purpose of preparing a document will be that of the maker of the document. However, that will not always be so where some other person, such as a solicitor, commissions the provision of a report and thus calls the document in question into existence. In such a case, the relevant purpose will not be that of the author but that of the person calling the document into existence: Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd (Carter Holt).[10]

22 In the case of a document produced for a corporation it may be necessary to examine the purpose of the persons in the corporation hierarchy, which may be some person or persons other than the author or indeed the person directly commissioning the document, to determine the purpose for which the document was brought into existence.[11]

23 In Esso Australia Resources Ltd v FCT,[12] Gleeson CJ, Gaudron and Gummow JJ said:

In many cases the reports would result from established corporate or bureaucratic procedures, and the individual who made the report would simply be following instructions. It may be necessary to understand the internal procedures, or the objectives of some person of higher authority, in order to identify the purpose or purposes for which the reports were prepared.

The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.

25 In Carter Holt,[14] the Court of Appeal confirmed that a two step approach must be adopted in determining dominant purpose. The two steps are:

(a) Ascertaining the subjective purpose or purposes of the person or persons making or commissioning the communication in question;

(b) If the Court concludes that there was more than one purpose, at least one of which was a purpose capable of attracting legal professional privilege, to determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose, a determination that must be made objectively.

26 The Court of Appeal in Carter Holt cited with approval the observations of Kenny J in Commissioner of Taxation v Pratt Holdings,[15] as follows:

The purpose for which a document is brought into existence is a question of fact. Where there are a number of purposes for the creation of a document, it can be difficult to identify the dominant purpose. The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the parties' submissions. The purpose will ordinarily be that of the maker of the document, but this will not always be the case.

27 The Court of Appeal, and other courts, have interpreted the word "dominant" as meaning that there must be a "clear paramountcy" of purpose.[16]

28 Documents are not privileged merely because a draft was sent to a lawyer,[17] one of their intended destinations is the desk of a lawyer, or because the documents are produced pursuant to established corporate procedures involving lawyers.[18]

29 The purpose for which a document is brought into existence is to be determined at the time at which it is commissioned and not by reference to purposes to which it may later be applied.[19]

30 It is common ground that this application is interlocutory. As Cross on Evidence notes:[20]

A determination that a document is the subject of legal professional privilege is interlocutory,[21] unless the proceedings sought a declaration that a particular document was privileged, or an injunction against destroying it on the ground that it was privileged.

(1) Except where otherwise provided by or under these Rules, an affidavit shall be confined to facts which the deponent is able to state of the deponent's own knowledge.

(2) On an interlocutory application an affidavit may contain a statement of fact based on information and belief if the grounds are set out.[22]

32 Section 75 of the Evidence Act is also relevant. It provides:

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

33 By virtue of s 9 (particularly s 9(2)(c)) of the Evidence Act, s 75 does not affect the operation of the Rules.[23]

34 The issue that arises in this application is whether to satisfy the requirement for "evidence of its source" or "the grounds are set out", it is necessary to identify the maker of the hearsay statement relied upon.

35 Under the Rules, the authorities establish the following general propositions:

(a) Setting out the grounds as required by r 43.03(2) requires that the source of the information be identified: Hartwell Trent (Aust) Pty Ltd v Tefal Société Anonyme;[24]

(b) If the grounds are not set out, the Court may refuse to allow the affidavit to be admitted into evidence: Re JL Young Manufacturing Co;[25] Seward v Quigley;[26] Manson v Ponninghaus;[27] Hartwell Trent (Aust) Pty Ltd v Tefal Société Anonyme,[28] above;

(c) The discretion to admit an affidavit that does not set out the grounds for the information and belief, turns on the application of the irregularity Rules, Rules 2.01, 2.04 and 43.08: Atherton v Jackson's Corio Meat Packing (1965) Pty Ltd;[29]

(d) In some circumstances it has been held that the failure to state grounds for the information and belief goes to the weight to be given to the affidavit and not its admissibility: Re Mary Gleeson (dec'd);[30] Knight v Bell;[31] Hardie Rubber Co Pty Ltd v General Tyre & Rubber Co;[32]

(e) In some circumstances it has been held that it is sufficient to set out the grounds without identifying the source by name, such as where:

(i) an applicant for leave to commence a proceeding for damages for bodily injury caused by medical negligence pursuant to s 23A of the Limitation of Actions Act 1958, had a legitimate strategic interest in not naming an expert medical doctor, whose evidence was relied on in the application, at that stage of the proceeding: McNeill v Royal Victoria Eye & Ear Hospital;[33]

(ii) in relation to a provision of the Proceeds of Crime Act 1991 (ACT) which provided that "An affidavit made by a police officer for the purposes of this section that states that the officer believes a particular matter shall set out the grounds on which the officer holds that belief", the Full Court of the Federal Court held that there is no legal requirement that the sources of the information and belief should be disclosed. However, at the hearing of the DPP's application, a person entitled to resist the application may inquire of the police officer as to that source and, subject to any claim for non-disclosure of the response to any person in the public interest, the source will be named.[34]

36 In relation to the cases referred to in paragraph (d) above, the learned authors of Williams, Civil Procedure Victoria, commented, correctly in my view, that:

The comments of Webb J in Re Mary Gleeson (dec'd) [1887] VicLawRp 107; (1887) 13 VLR 565 at 566, and Knight v Bell [1887] VicLawRp 121; (1887) 13 VLR 639 at 644, ...could be read as meaning that an objection that an affidavit was made on information and belief and not from personal knowledge went to the weight to be given to the affidavit rather that to its admissibility. ... However, it is submitted that his Honour was referring to the case where by the rule an affidavit on information and belief was permitted but, in breach of the rule, the affidavit did not state the grounds of the belief, and not to the case where the rule was not applicable, and affidavits on information and belief could not be used.

37 Thus, as a general rule, where affidavit evidence is given on information and belief, the grounds that must be given include the identification of the person or persons who supplied the information, that is the 'source' of that information. Notwithstanding that general rule, the Court has a discretion to admit an affidavit that adduces evidence on information and belief where the grounds are not, or are not fully, set out. The factors which will influence the exercise of that discretion are likely to include:

(a) The kind and gravity of the matter in relation to which the affidavit evidence is directed;

(d) The time the deponent has had to identify the source;

(e) The extent to which the identity of the source is necessary for the Court to assess the weight that needs to be given to the evidence;

(f) Factors arising from the governing legislation or other law; and

Section 75 Evidence Act

38 It is said in Cross on Evidence[35] that "source" where used in s 75 of the Evidence Act requires identification of a person, not merely an institution: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation.[36] That was a case of an application by an Aboriginal Corporation to set aside an order that it be wound up in insolvency. The material rejected was information given by "the Australian Federal Police" without naming the officer. The admission of the evidence was refused for non-compliance with s 75. The decision proceeded on the assumption that a named source was required by the section and involved no analysis of any other authority or an analysis of the text of the section. See also De Bortoli Wines Pty Ltd v HIH Insurance Ltd.[37]

39 In Levis v McDonald,[38] Lindgren J expressed the view that the source which is referred to in s 75 is the maker of the hearsay statement relied upon. In his view, the lack of identification of the source of the original statement cannot be overcome by interposing a further person whose identity is revealed.

40 In Wily v Terra Cresta Business Solutions Pty Ltd,[39] an extempore decision of Palmer J in the New South Wales Supreme Court, his Honour held that the requirement of s 75 to adduce evidence of the source of the hearsay evidence was not fulfilled in that case by references in correspondence to "our client". That was a case where the plaintiff sought to keep secret from the defendants the identity of a litigation funder, but nevertheless to have admitted hearsay statements of that unidentified litigation funder. His Honour noted that the purpose of s 75 is to facilitate the conduct of interlocutory proceedings in circumstances where it is difficult at short notice to adduce evidence in direct and admissible form. His Honour observed, however:

...the requirement of the section that the source of the information be revealed goes some way to assisting the Court in assessing the reliability of that evidence. Without any indication of the source of the evidence proffered on information and belief, the Court is unable to assess its weight nor can the opponent test the evidence or make any sensible submission as to its weight.[40]

41 Those remarks were cited with approval in New South Crime Commission v Vu[41] by Spigelman CJ (Allsop P (as he then was) and Hodgson JA agreeing)[42]. Spigelman CJ observed that nothing in s 75 suggests that it is necessary to provide evidence of the ultimate source of the information contained in the hearsay statement. However, his Honour implicitly endorsed (at [46]) the proposition that the task of assessing the weight of the evidence in question requires identification of a person reasonably likely to have knowledge of the relevant fact. He then went on to say:

There is authority for the proposition that, where hearsay evidence is admissible, it is not necessary to name an informant with respect to every source of information. (See Hardie Rubber Co Pty Ltd v General Tyre & Rubber Co [1973] HCA 66; (1971) 129 CLR 521 at 536; Proctor Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [54]- [56].)[43]

42 In Liu v The Age Company[44] McCallum J referred to these authorities and noted that in the context of the matter before him that -

I note that it would have been open to the defendants to seek to adduce the evidence in admissible form by tendering the relevant correspondence with the sources, masking the names of the sources and any other identifying information.

43 These authorities point strongly to the result that for hearsay evidence to be admissible under s 75 in an interlocutory proceeding the source (or at least the primary source) must be identified by name. The Macquarie Dictionary defines 'source', relevantly, as "a book, statement, person, etc, supplying information".[45] Thus the natural and ordinary meaning of 'source' suggests that the person who is the source of the evidence is identified. Whether there is any scope for the identity of the source to be kept confidential will turn on the powers of the particular Court and the circumstances of the case.

44 The plaintiff's Summons seeks production by SPI for inspection of the following documents:

(a) Documents numbered 76, 77-95, 97-224, 229, 238 and 239 from the First List. Documents 77-95 and 97-224 are attachments to document 76, which collectively are known as the Murrindindi Briefing Note or Bible (Bible); and

(b) documents numbered 3, 4, 6, 27-28, 30-31, 35-37, 39-41, 81-134, 194-209, 213, 219-220, 222, 224 and 227 from SPI's Third List.[46]

45 The plaintiff has, since issuing the Summons, abandoned its claim to inspection of document 76, and attachments to it (on the basis that they are attachments to the Bible), in the First List. Those attachments are in some instances copies of documents over which there is no claim to privilege. The plaintiff corresponded with SPI concerning claims of privilege made over the original versions of these documents.[47] That correspondence has resulted in the narrowing of the disputes.

46 Thus, Counsel for SPI, Mr Solomon SC and Mr Wallis, in their Supplementary Outline of Submissions dated 9 December, stated that SPI -

(a) Has either discovered or will discover the original version of documents 79-81, 84, 92, 98, 101-103, 106-111, 116, 117, 126 and 127 in the First List;[48] and

(b) Objects to producing the original version of documents 77, 78, 82, 83, 85-91, 93-95, 97, 99, 100, 104-105, 112-115, 118-125, 128-224 in the First List on the ground of privilege. No contention has been made that the privilege has been waived.

47 Ms Forsyth, Counsel for the plaintiff, explained at the outset of the hearing that there was now no application in relation to the original versions of the following documents:

(a) Documents numbered 76, 79, 80, 84, 106, 107, 108, 109, 126, 229 and 238 in SPI's List of Documents dated 16 August 2013, Schedule 1 Part 2; and

(b) Documents numbered 28, 30, 31, 209, 213, 219, 220, 224 and 227 in SPI's Third List.[49]

48 It can be seen that there is a slight discrepancy between the documents now in dispute in respect of documents in the First List. The original or non-privileged versions of documents 79, 80, 81, 84, 92, 98, 101-103, 106-111, 116, 117 and 127 are said to be discovered, by which I take it to mean that they are available for inspection,[50] but the originals versions of some of these documents are the subject of the plaintiffs summons.

49 Notwithstanding this discrepancy, I was provided with copies of the disputed documents in the First List for the purposes of resolving the disputes, so subject to clearing up whether there remains a dispute over some of the documents mentioned above, I have approached the resolution of the disputes on a broad basis by reference to categories of documents.

50 The documents over which SPI claims privilege that remain in dispute fall into 4 broad categories. These are:

(a) The originals of attachments to the Bible, being items 1-34 and 52-57 in the Table of Disputed Documents annexed to these reasons;

(b) Technical analysis documents identified as item numbers 68-71 in the Table of Disputed Documents;

(d) Photographs in items 35-51 in the Table of Disputed Documents;

51 Ms Forsyth of Counsel who, with Mr Aleksov, appeared for the plaintiff, described the first two categories as the "big ticket items".

52 The plaintiff's challenge is, in essence, the same challenge to all categories. That is -

(a) All the documents are internally prepared SPI documents regarding the Murrindindi assets;

(b) They are not documents of a legal nature or prepared for submission to lawyers for the purposes of advising SPI; and

(c) The evidence provided by SPI in relation to all of the documents is insufficient to discharge its onus of establishing the documents are privileged.

53 Ms Forsyth contended that the litigation privilege is not available in this case because:

(a) There is no allegation anywhere in any affidavit material that there was litigation in which SPI was anticipated to be a party as required by s 119 of the Evidence Act; and

(b) In the affidavits, SPI has referred to briefing Freehills regularly without making clear what it is that Freehills was briefed to do, and simply briefing Freehills is not enough. There were a multiplicity of matters for which Freehills may have been briefed, including a coronial investigation, a Royal Commission and investigations by the police. None of these give rise to a litigation purpose. There was no class action against SPI pending or in contemplation at the time in relation to the Murrindindi fires.

54 SPI's contention was that the only privilege available is that arising under s 118(c) of the Evidence Act. That privilege may be available if SPI satisfies the Court that the material the subject of the claim for privilege was prepared for the dominant purpose of seeking legal advice. None of the documents in dispute are communications with lawyers. Therefore s 118(a) and (b) are not available.

55 I will deal with the other and more detailed submissions when dealing with the particular categories of documents.

56 Before the hearing, the plaintiff notified SPI that it would seek leave to cross-examine Mr Karafotias and Mr Clark. Although the application for leave was opposed in relation to Mr Clark, I determined that for the limited purposes proposed by Counsel for the plaintiff that I would allow the cross-examination, and referred to my reasons in Matthews v SPI Electricity Pty Ltd (No 6).[51]

57 From April 2004 to February 2010 Mr Karafotias held the position of Legal Manager (or an equivalent position) for SPI. He held a Victorian Practising Certificate. In that position he regularly gave legal advice to SPI.

58 On 7 February 2009 he became aware of the major fires that had broken out across Victoria, including the fire which commenced near Murrindindi. In the days after 7 February 2009 he became aware of the establishment of the Royal Commission of Inquiry into all aspects associated with the bushfires, including the Murrindindi fire. He also became aware that various authorities, including Energy Safe Victoria (ESV) and the Victoria Police were investigating many aspects of the bushfires, including their causes. His understanding was that the Victoria Police were investigating the Murrindindi fire (amongst others) on behalf of the Coroner.

59 In early - to - mid February 2009, he established a specialised team of persons within SPI to attend to various tasks anticipated to arise as a result of the fires which commenced in the SPI distribution network. This team, called the 'Bushfire Response Team' comprised Ross Clark, Yoshiko Yamaokoa and himself. He led the team. From mid February 2009 the work of the Bushfire Response Team was to:

(a) Brief external legal advisors, Freehills, to represent and provide advice to SPI on all aspects of the Victorian Bushfires that may have an impact upon SPI and to act as SPI's solicitors. Freehills was briefed in relation to (amongst other things):

(i) The investigation by Victoria Police of the fire which originated near Murrindindi. The investigation commenced on 8 February 2009 on the Coroner's behalf.

(ii) The 2009 Victorian Bushfires Royal Commission which was established by letters patent dated 16 February 2009; and

(iii) The class action commenced on 16 February 2009, which became Matthews v SPI Electricity Pty Ltd & Ors, in relation to the Kilmore East Bushfire;

(b) Respond to various inquiries made of SPI by Victoria Police and ESV in relation to their investigations of the Murrindindi bushfire; and

(c) Prepare communications to be distributed within SPI regarding the various investigations and inquiries referred to in paragraphs (a) and (b) above.

60 On or shortly after 9 February 2009, Freehills were engaged to act for SPI in relation to all aspects of the fires which commenced in SPI's distribution network on 7 February 2009, including the Murrindindi bushfire.

61 In early March 2009, the Board of Directors of SPI established a Bushfire Litigation and Inquiry Response sub-committee called the 'Bushfire Litigation Sub-Committee'. This Sub-Committee had authority to assist and guide the Bushfire Response Team to enable it to instruct external legal counsel and to assist SPI respond to the Royal Commission, any class action relating to the bushfires and any subsequent or associated litigation.

62 In his role as Legal Manager of the Bushfire Response Team, Mr Karafotias was required to attend meetings of the Bushfire Litigation Sub-Committee as a legal advisor, to provide updates on the progress of the Bushfire Response Team and on his instructions to Freehills [sic].[52] During the period from February 2009 to February 2010 he regularly reported to the Bushfire Litigation Sub-Committee on matters for which the Bushfire Response Team was responsible.

63 The Bushfire Response Team was disbanded in February 2010 when Mr Karafotias was appointed Manager, Program Delivery, for the Network Strategy and Development Group. The Team was, however, called upon as needed. From that time the responsibilities of the Bushfire Response Team as set out above were assumed by Karena Louise Reid as the Legal Manager.

64 Mr Karafotias was cross-examined by Counsel for the plaintiff. The crossexamination concerned the original versions of the documents that became the attachments to the Bible. These documents are originals of the documents in items 77 - 224 in the Table of Disputed Documents.

(a) The Bushfire Response Team that he headed was concerned to do three things. First, brief Freehills. Secondly, respond to enquiries from Victoria Police and ESV. Thirdly, prepare internal communications;[53]

(b) The Bushfire Response Team responded to Victoria Police and ESV separately from the obtaining of documents for inclusion as attachments to the Bible;

(c) Some of the information contained in the documents that became attachments to the Bible overlapped with information that was gathered to respond to Victoria Police and ESV. He could not say positively that the information that was gathered for inclusion in an attachment to the Bible was not the same as that which was gathered to be given to Victoria Police and ESV;[54]

(d) In February to March 2009, SPI was communicating directly with Victoria Police as well as through Freehills;[55]

(e) An example of documents that were obtained for the purpose of being supplied directly to Victoria Police is referred to in document SPN.007.007.0036, being two emails, the first from Paul Lane of SPI to Mr Karafotias dated 24 February 2009, and the second from Mr Ross Clark of SPI to Mr Kevin Murdoch of the Victoria Police dated 12 March 2009.[56] The information referred to in Mr Clark's email that was being communicated directly to Victoria Police was also being gathered to brief Freehills, potentially;[57]

(f) The Bible was intended to collate all information in respect of the SPI assets for the purpose of providing it to Freehills and there is duplication between the information provided to Freehills and what was provided to Victoria Police, but that he could not determine what was the extent of the duplication without going back and looking at what was provided to Victoria Police and referencing it back to the Bible;[58]

(g) The information in the Bible was used by the Bushfire Response Team for each of its three roles referred to above; and

(h) The evidence given by him in paragraph 16 of his affidavit as to the purpose for which the attachments to the Bible were brought into existence is not the purpose for which the original documents were brought into existence. He was not the person who had prepared them originally and he was not aware who prepared them originally. Some of the documents pre-dated his requests (or the requests of other SPI personnel) for the documents to be produced, for example documents automatically generated in the course of SPI's business. Therefore, his evidence of the purpose for which the documents were collected is not evidence about the purpose for which they were initially prepared.[59]

66 From February 2009 until February 2010, Mr Clark was the specially appointed 'Technical Lead' in the Bushfire Response Team, which reported to the SPI Legal Group. His role was to gather technical information under the supervision of Mr Karafotias who was the leader of the Team. After the Team was disbanded in 2010, he continued to work in the role as needed with Ms Reid and Mr Phil Bryant, of the Network Safety Group within SPI, in briefing and instructing the internal and external lawyers of SPI.

67 In February 2009 Mr Karafotias instructed him to compile the Bible, which was to comprise documents containing all information relating to SPI's assets near Murrindindi and a summary of that information. He did that over the period from February to May 2009. It involved collecting documents himself and asking other employees to provide information and documents.

68 He deposed that he had reviewed the documents in items 2-55 in the Table of Disputed Documents,[60] and identified that they are the attachments to the Bible.

69 Mr Clark was cross-examined about some specific documents referred to in his affidavit of 2 December 2013 with a view to establishing that these were the same documents (or at least one of them was) as referred to in Exhibit 1 tendered during the cross-examination of Mr Karafotias, being emails of 24 February and 12 March 2009 concerning the collection of information for the Victoria Police and the sending of that information - in the form of documents - to the Police.[61] Mr Clark said that the difference was some markings he made on one attachment to the Bible,[62] and he could not be sure if there were any other differences without checking.[63] This document was an attachment to document 115 (item 26 in the Table of Disputed Documents) and is document 116, being an extract from Q4, which is a very large Asset Management database maintained by SPI.

70 Although I have not inspected the corresponding document provided to the Police, the only asserted difference between that document and document 116 in the First List is the annotation and:

(a) In his affidavit the document in question (116) is in the category of documents that have hand written notations made for the purpose of collating the Bible, and that, by inference, is the only reason for the claim for privilege. I have inspected that document, which was provided to me for that purpose, and can confirm that it has a handwritten notation; and

(b) The original information contained in the document (116) is on the face of it no more than an extract from the Q4 database, which is not in any way contended to be the subject of privilege.

71 The plaintiff's Summons dated 28 October 2013 sought inspection of the original versions of documents, copies of which became attachments to the Bible. The Table of Disputed Documents identifies the documents in controversy, and identifies the paragraphs of the several affidavits said to support the claims, and whether the claim to privilege is challenged by the plaintiff and, if so, the basis of the challenge. This table was compiled by the plaintiff and is based on the correspondence, submissions, affidavits and arguments before the Court. I understand it to be a non-contentious description of the disputes. I have added a column to it in which I have recorded my decision on each disputed document. Some of the decisions follow from general conclusions as to whether SPI has established that the dominant purpose of the creation of the document or copy document was the purpose of obtaining legal advice from Freehills.

72 The attachments to the Bible fall into five categories:

(a) Category One: Emails and attachments - these were emails received by Mr Clark containing information he requested for the purpose of collating information and data for inclusion in the Bible (documents 82, 87-91, 95, 97, 99, 105, 112-115, 118, 119, 122-125, 218-220 and 222-224 in the First List). Evidence as to these emails and attachments is at paragraphs 6-10 of the Second Clark Affidavit;

(b) Category Two: Documents for inclusion in the Bible - these documents were created for inclusion in the Bible (documents 77, 93, 94, 104, 120, 121, 217 and 221 in the First List). Evidence as to these documents is at paragraphs 11-16 of the Second Clark Affidavit;

(c) Category Three: Annotated documents included in the Bible - these documents contain handwritten annotations made by Mr Clark or Mr Karafotias before the documents were inserted in as attachments to the Bible (documents 110, 111, 116, 117 and 127 in the First List). Evidence as to these documents is at paragraphs 17-19 of the Second Clark Affidavit;

(d) Category Four: Photographs taken by Ms Reid - these are photographs taken by Ms Reid at Mr Clark's request and an email (documents 184-216 in the First List). Evidence as to these is at paragraph 20 of the Second Clark Affidavit; and

(e) Category Five: Photographs and other documents - these were created in the course of collating data and information for inclusion in the Bible (documents 78, 83, 85-86, 100 and 128-183 in the First List). Evidence as to these photographs and other documents is at paragraphs 21-24 of the Second Clark Affidavit.

73 Mr Karafotias gave evidence in paragraphs 14-17 of his affidavit of the purpose for preparing the Bible. Paragraph 18 provides evidence regarding the photographs which are documents 128-177 and 180-183.

74 At the expense of some repetition, the evidence of Mr Karafotias in his affidavit is to the following effect:

(a) On or shortly after 9 February 2009, SPI engaged Freehills to act for it in relation to all aspects of the fires which commenced in the SPI distribution network on 7 February 2009;

(b) Mr Karafotias, at that time the Legal Manager with SPI, asked Mr Clark to prepare a Bible (which Mr Karafotias also worked on) for the purpose of briefing Freehills to provide legal advice in relation to the Murrindindi fire, and for no other purpose;

(c) Documents 77-95 and 97-224 are attached to, and form part of, the Bible. Mr Karafotias asked Mr Clark to collect the information recorded in those documents for the purpose of briefing Freehills, and for no other purpose. The Bible was provided to Freehills once complete; and

(d) Mr Karafotias caused the Bible to be collected from SPI's offices by Freehills. He retained a copy for the Bushfire Response Team. He is not aware of it being provided to anyone else.

75 In his cross examination he was taken to paragraphs 16 and 17 of his First Affidavit where he gave evidence in a more general way that the Bible and its attachments was prepared for the purpose of briefing Freehills and for no other purpose. His cross-examination on this topic was as follows:

Mr Karafotias, in Paragraph 17 of your affidavit, you say you kept a copy of the brief for the bushfire response team; is that right? - - - That's correct.

And that was always the plan, wasn't it? - - - That's the plan, yes.

And that brief was a useful repository of information relating to the Murrindindi assets wasn't it? - - - For the team, yes.

And, the bushfire response team would have used that for the various purposes of the teams, isn't that right?

MR SOLOMON: Your Honour, I object to the question. "Would have" is hypothetical.

HIS HONOUR: Try "did".

MS FORSYTH: I'll try "did". (To witness) You used that brief for the purpose - the various purposes of the bushfire response team.

MR SOLOMON: Your Honour, we object to the question. The question is irrelevant, there is no contention of waiver of privilege.

HIS HONOUR: No, it's purpose that she's directing the question to.

MS FORSYTH: I asked him whether that was always the plan, that they would keep it.

HIS HONOUR: I think that's what it's directed to.

MR SOLOMON: If Your Honour pleases.

MS FORSYTH: Mr Karafotias, you used the information in a brief for the bushfire response team, didn't you? - - - We did, yes.

And the bushfire response team, you've given evidence, had three main roles, isn't that right? - - - That's correct.

And you used the material in the brief for those roles, isn't that right? - - - For those roles, yes.

All three of them? - - - They would have been used and called upon when needed, yes.

Mr Karafotias, you've given evidence as to the purpose for which the information contained in the documents was collected, isn't that right, in Paragraph 16 of your affidavit? - - - That's correct.

But you haven't given any evidence as to the purpose for which the documents were initially prepared, have you? - - - No, I have not.

And you can't do that because you weren't the person who prepared them and you weren't privy to the information about who prepared them, isn't that right? - - - That's correct.

And, it may well be that some of those documents might have even predated the request, isn't that right? - - - There would have been some - some bits of information that would have predated my reports, yes, automatically generated in the business.

So therefore, your description about the documents only goes as far as the purpose for which they were collected, and you can't give any evidence about the purpose for which they were initially prepared, can you?- - - I cannot.

76 It needs to be borne in mind in reading this excerpt from the cross-examination of Mr Karafotias that the purposes of the BRT as set out in paragraph 9 of his affidavit involved three main roles, as set out in paragraph 59 above, and that in relation to the role of briefing Freehills (the first role) that briefing itself had both privileged and non-privileged purposes. The brief to Freehills was to represent and provide advice to SPI in relation to the Police investigation, the Royal Commission and the Kilmore East class action. Although advice in relation to each of those matters would be privileged, representation would not.

77 The second and third of the roles of the Bushfire Response Team were to respond to various inquiries made of SPI by Victoria Police and ESV in relation to their investigations of the Murrindindi bushfire and to prepare communications to be distributed within SPI regarding the various investigations and inquiries referred to in the first two roles. The cross-examination leads to another use, and possible purpose, namely to provide a repository of information relating to the Murrindindi assets of SPI.

78 Reading the cross-examination as a whole, and making due allowance for the interruption, it is my view that the effect of the evidence is that it was always the plan that the Bible, or at least the attachments to the Bible, would be used for multiple purposes, including:

(a) To be retained by the Bushfire Response Team for use in all three roles; and

(b) In relation to briefing Freehills, for Freehills to advise SPI and for Freehills to represent it, being privileged and non-privileged purposes.

79 Accordingly, in relation to the attachments to the Bible, in my view, the generality of the evidence of Mr Karafotias is insufficient to establish the privileged purpose of their preparation. In this regard, the plaintiff submitted that the correspondence between the parties leading up to the application made it clear that SPI was on notice of what the plaintiff sought to be clarified and precisely the points that were going to be made.

80 The plaintiff also submitted that the Court should infer that there was a multiplicity of purposes for these attachments to the Bible because Mr Clark did not give evidence that the sole purpose for which the Bible was used was to brief Freehills and it was retained for the Bushfire Response Team.[64] Mr Karafotias did give evidence, as I have said, that the preparation of the Bible was for the purpose of briefing Freehills to provide legal advice in relation to the Murrindindi fire, and for no other purpose.[65] SPI emphasised this evidence in its submissions. Mr Karafotias also gave evidence of the purpose of the collection of the attachments to the Bible was for the sole purpose of briefing Freehills, implying, but not saying, that briefing was for the purpose of advice.[66] This evidence is, however, at odds with his evidence as to the work of the Bushfire Response Team being to brief Freehills to represent and provide advice to SPI and to perform the other two non-privileged roles, and is contradicted by his evidence in cross-examination.

81 The evidence does not enable any objective determination of what was the dominant purpose. The result is, therefore, that SPI fails in establishing that the dominant purpose was a privileged purpose.

82 If, however, I am wrong in that conclusion, it is necessary to delve into the evidence of Mr Clark in relation to the five categories of attachments to the Bible (bearing in mind the general purpose of the Bible and the instructions from Mr Karafotias referred to above at paragraphs 66-68), together with the criticisms made by the plaintiff and my conclusions, are set out in the following paragraphs.

83 Mr Clark sets out in a table in paragraph 6 of his Second Affidavit a description of each document and says that, with the exception of documents 97 and 105 (from the First List), that on or shortly before the date of each email he requested the sender to provide him with information relating to SPI's assets near Murrindindi for the sole purpose of assisting him to compile the Bible. Paragraphs 7-10 of the affidavit deal with further detail of the author and Mr Clark's request for the creation of several of the documents.

84 The senders, or preparers, of the documents are numerous and the question is whether in the absence of evidence from them, the evidence of Mr Clark and Mr Karafotias is sufficient.

85 The plaintiff contended that there was no basis for the evidence that the documents were created by the sender following his request and that where a contested claim depends upon the purposes for which a document was prepared, it is generally appropriate that the evidence supporting that claim be given by the person or persons from whom the documents (or the request for them) originated, so that any assertions as to purpose may be tested by cross-examination.[67]

86 In relation to the table at paragraph 6 of the Mr Clark's Second Affidavit, the plaintiff identifies additional issues weighing against a finding that certain documents in that table are privileged, as follows:

(a) Mr Clark gave no specific evidence about the dates of creation or the authors of the documents listed as attachments to emails in the table (Documents 88, 99, 119, 123, 219, 220 and 224). Mr Clark's hearsay evidence that those attachments were created following his request[68] is objectionable on the basis that he has not stated the source of that information.[69] It is critical for the Court to have evidence as to when the attachments to the emails were prepared, and who prepared them, in order to determine the purpose for which they were prepared. This evidence has not been given, and the claim for privilege over them should fail;

(b) Document 99 is undated in the Second Clark Affidavit but is dated as 13 February 2009 (which is very shortly after the fire, and the establishment of the Bushfire Response Team) in the plaintiff's first List of Documents. Document 99 is identified as an attachment to document 97, which is an email dated 10 March 2009. The plaintiff submits that on the basis of those dates, it is likely that document 97 was created prior to the request by Mr Clark for the information in the document. The plaintiff submits that such an inference should be drawn where there is no admissible evidence to the contrary; and

(c) Document 105 is an email to Mr Clark but also to two other people. No explanation is given as to this distribution and it again suggests that there were a multiplicity of purposes for these documents, beyond the "sole purpose" deposed to by Mr Clark and Mr Karafotias.

87 In respect of each of these submissions, my conclusion is:

(a) The requirement for the admission of hearsay evidence under s 75 of the Evidence Act in an interlocutory application are set out above at paragraphs 38 to 43. It is clear that the requirements have not been satisfied. There is no identification of the source of the evidence adduced. Mr Clark merely asserts that the attachments were create[70]following his request;70

(b) In contrast to the documents referred to in paragraph 86(a) above, the evidence of Mr Clark (r[71]d broadly)71 identifies the source of his information for document 99. Further, evidence that document 99 relates to the collection of information for inclusion in the Bible is not contradicted or diminished by an inspection of the document. I might add, that there are two dates on the document, one of which is 10 March 2009 and the other, identified above as 13 February 2009, is not the date of the document;

(c) Mr Clark's evidence that document 105 relates to the collection of information for inclusion in the Bible[72] is appropriately sourced (for the purposes of s 75 of the Evidence Act) and is not contradicted or diminished by an inspection of the email. The multiple recipients of the email is explained by the content of the email and does not itself reveal multiple purposes.

88 Accordingly, in relation to all the documents referred to in the table in paragraph 6 of the Second Affidavit of Mr Clark, other than documents 97 and 105, SPI has failed to establish that they were prepared for a privileged purpose, assuming the attachments generally were to be gathered for a privileged purpose, contrary to my general conclusion.

Category Two: documents for inclusion in the Bible

89 In paragraphs 11-16 of his Second Affidavit, Mr Clark deposes that each of these documents was created by him for inclusion as attachments to the Bible. Two of those Documents are apparently not now the subject of a claim to privilege (documents 94 and 104).

90 Counsel for the plaintiff submitted that Mr Clark has used a different verbal formula in describing the purpose for which he created these documents, compared with the formula he uses in paragraphs 7-9 of his Second Affidavit, where he uses the expression "sole purpose". The plaintiff submitted that because he does not depose to a sole purpose or a dominant purpose it is a weaker verbal formula and does not discharge the onus of establishing the claim of privilege over these documents, particularly in the context of the correspondence exhibited to the affidavit of Ms Patterson which preceded the making of the affidavits.

91 On the assumption (contrary to my conclusion above) that the overall purpose of the production of the attachments to the Bible was predominantly a privileged purpose, I am satisfied that the evidence of Mr Clark adequately establishes that the documents were created for a privileged purpose. That is, the comparison of the different verbal formulae used by Mr Clark does not detract from the evidence he gives in relation to these documents. Reading the affidavit sensibly, in my view there is no other reasonably open construction other than that he produced these documents for the sole purpose of inclusion in the Bible.

Category Three: Annotated documents included in the Bible

92 Documents 110, 111, 116, 117, 127 in the First List were annotated for the purpose of including them in the Bible. The claim for privilege involves the annotation. Un-annotated versions of these documents either have been or will be discovered by SPI.

93 On the assumption (contrary to my conclusion above) that the overall purpose of the production of the Bible was predominantly a privileged purpose, I am satisfied that the evidence of Mr Clark in paragraphs 17-19 of his second affidavit adequately establish the privileged purpose.[73]

94 Paragraph 20 of Mr Clark's Second Affidavit establishes the request to Ms Reid to take, and the making of, these photographs for inclusion in the Bible. The plaintiff criticises this claim to privilege as there is no evidence from Ms Reid as to the request and the taking of them. That is not a flaw in the proof as it is the purpose of the person who has requested the photographs in this case that is critical. Once again, on the assumption (contrary to my conclusion above) that the overall purpose of the production of the Bible was predominantly a privileged purpose, I am satisfied that the evidence of Mr Clark establishes that these photographs were taken for a privileged purpose.

Category Five: photographs and other documents

95 The plaintiff submitted that all of these documents were brought into being, either by Mr Clark or other employees of the first defendant at Mr Clark's request, for the purpose of including them in or preparing (that is, compiling) the Bible. Each document, thus, was created as part of the process.

96 Mr Clark gives evidence that document 78 is a copy of an email sent by Mr Clark to Ms Yamaoka on 12 March 2009 attaching photographs he had received from Mr Paul Lewis and Mr Glen Johnstone, two of SPI's linesman, that had been taken on 7 February 2009. It seems the SPI linesman were at the Murrindindi Mill on the day of the fire.[74] Mr Clark deposes that he sent the email to Ms Yamaoka in the course of collating the Bible and that the copy of the email discovered contains handwritten markings, but he does not recall the purpose for these markings.

97 The plaintiff submitted that there is no evidence as to the purpose for which the photograph was taken, the email was sent or the markings were made. What can be said is that, as Mr Clark deposes, the email was sent "in the course of collating the Bible", and that a copy of it is included as an attachment to the Bible. One might suppose that therefore the purpose was for the photographs to be included in the Bible. But it is not said. It is not said in the context of a hotly disputed contest over the claims for privilege and after correspondence from the plaintiff's solicitor making it plain that proof was required as to the purpose of the preparation of the various documents the subject of the claim. The evidence of Mr Clark in this regard is in my view insufficient. Thus even if the purpose of the Bible is a privileged purpose, this email is not privileged. Moreover, I have inspected the email and the marking on it is not meaningful.

98 I was told in argument that the photographs attached to the email are not the subject of a claim for privilege. If they were claimed to be privileged, I agree with the plaintiff's submission that the photographs were, according to Mr Clark's evidence, taken on the day of the fire, and that predates any request by Mr Karafotias or Mr Clark for that information to be gathered for the Bible.

99 Mr Clark says that documents 83, 85 and 86 were provided to him by Mr Allan Truman, an SPI employee, in response to a request from Mr Clark that Mr Truman locate information regarding SPI assets near Murrindindi.[75] Mr Clark does not state the purpose for which he made this request. Mr Truman has not given any evidence. SPI submitted that the purpose is inferred from the task Mr Clark is performing (the collection of information for inclusion in the Bible), the timing of the request to Mr Truman and the nature of the information in the documents.[76]

100 In my view, as the plaintiff submitted, there is no direct evidence that the purpose of the preparation of these documents was for use in the Bible and SPI has not discharged the onus of establishing the claim of privilege over those documents.

101 Mr Clark says that document 100 was created by the controller at the Network Operations Centre for the purpose of inclusion in the Bible.[77] Taken as a fact, rather than hearsay evidence, that establishes the creation of the document for the privileged purpose, assuming (contrary to my conclusion above) the creation of the Bible was for such a purpose.

102 Documents 128-183 were photographs taken by Ms Yamaoka at the site on 25 February 2009 in the presence of Mr Clark. He understood that they were taken at the request of Mr Karafotias. These photographs are also in the group of photographs considered separately below at paragraphs 133-137.

103 These documents comprise a number of versions of a paper (Microsoft Word document) called "Murrindindi Hypothetical Scenarios" (and variations of that name) and a number of versions of a PowerPoint document called "MDI Scenarios" (and variations of that name), together with other related documents. These documents are numbered 239 in the First List, and 3, 4, 6, 27, 35-37, 40, 41 and 194-208 and 222 in the Third List.

104 Mr Drew is now the Executive advisor - Technical Excellence & Innovation for SPI, and before that Group General Manager, Integrated Network Services and at the time of the fires was General Manager, Network Development. He was at the time relevant to the matters in dispute a member of the Bushfire Litigation Committee, a sub-committee of the Board of Directors of SPI (BLC). This Committee provided "strategic guidance and direction to SPI's legal representatives, comprising our in-house legal team and Freehills, in relation to the bushfires on 7 February 2009".[78] I note in this regard that Ms Reid, Legal Manager of SPI reporting to Ms Taylor, General Counsel, deposed in relation to the BLC that at all times that she was instructing Freehills, the BLC's role was to guide and assist her to instruct Freehills to advise and represent SPI in relation to all matters relating to the bushfires that occurred on 7 February 2009.[79]

(a) A meeting of the BLC was held on 12 July 2011. The Chair of the BLC (and he does not identify who that was) requested that Mr Drew and Ms Susan Taylor (then SPI's General Counsel) "ensure that a technical network analysis be undertaken in relation to the Murrindindi fire".[80] He then deposed that Mr Clarke and Mr Bryant were required to undertake the analysis;

(b) He signed a version of the paper on 12 August 2011 (Document 41 in the Third List) with an attached PowerPoint 'synopsis' (Document 40 in the Third List) for submission to the BLC;

(c) He then provided the signed paper to Ms Taylor for provision to the BLC, which he says was disseminated that day (he knew that because he received the documents by email as he was a member of the Committee); and

(d) Various drafts of the paper and PowerPoint document are also identified in SPI's First and Third Lists. These are the balance of the documents in dispute in this category.

106 Although Mr Drew does not expressly identify the purpose for which the technical analysis was prepared, it is reasonable to assume that the purpose was the very purpose of the BLC, as identified above. Nevertheless, the plaintiff contended that the evidence was insufficient. The plaintiff also contended that no evidence is given about the receipt of the paper by the BLC nor to what purpose(s) it was, or was not, put.

(a) he undertook the technical analysis collaboratively with Mr Bryant,[81] and that he did so on the request of Dhammika Adihetty, who was the Acting General Manager of the Network Strategy Division of SPI;

(b) He received some (unidentified) information from Ruth Overington of Freehills which was relevant to the analysis in September 2011 and updated the analysis "with a view to providing a paper to Freehills" (emphasis added). That paper he identifies as one of the Technical Analysis Documents.[82]

(a) That Mr Clark gave no evidence as to the purpose for which he was instructed that the technical analysis was being undertaken;

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