The single test for implied waiver of client legal privilege is the statutory inconsistency test in s 122(2) of the Evidence Act 2008 (Vic); alternative formulations from the case law ('centrality', 'totality', 'materially affecting or contributing to') merely describe outcomes in particular cases and should not be applied as independent tests. A party pleading a misleading or deceptive conduct case arising from a commercial transaction does not, without more, waive privilege over legal advice received in connection with the transaction merely by pleading reliance and lack of knowledge. Something more is required — the pleading must put the legal advice itself in issue or necessarily lay it open to scrutiny.
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