In Victoria, a client's plea of reliance or state of mind does not ipso facto waive legal professional privilege over contemporaneous legal communications. Issue waiver requires examination of the precise nature of the pleaded state of mind and whether the particular communication is likely to have had a bearing on it, with waiver arising only where there is an unfair inconsistency between the client's position and maintenance of the privilege. The test is one of probability or likelihood, not mere possibility. The narrower approach of South Australia, New South Wales and Tasmania is preferred to the broader Federal Court approach.
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