A person cannot be taken to have waived legal professional privilege over a document that was taken from them without consent and which they believed had been destroyed. Consent to institutional file access (such as psychology file access conditions) does not constitute express waiver of privilege over a specific privileged document placed on that file without the client's knowledge. Where the person claiming privilege is not the person who produced the documents under a witness order, common law legal professional privilege applies rather than the Evidence Act client legal privilege provisions.
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