Mr. M. Howell (Senior Member) & Mr. R. Batrouney and Ms H. Campbell (Members)

Legal Services Commissioner v Shulsinger (Legal Practice) [2010] VCAT 965

1. With the consent of the applicant and the consent of the respondent, leave is granted to the applicant to file a Further Amended Application for Order in the form submitted to the Tribunal on 26 May 2010.
2. The Tribunal finds the respondent guilty of professional misconduct or alternatively misconduct, being misconduct at common law, in relation to an Affidavit of Documents ("the First Affidavit") sworn by his client in family law proceedings [Charge 1].
3. The Tribunal finds the respondent guilty of unsatisfactory professional conduct or alternative unsatisfactory conduct in relation to an Affidavit of Documents ("the Second Affidavit") sworn by his client in family law proceedings [Charge 2].
4. The Tribunal finds the respondent guilty of unsatisfactory professional conduct or alternatively unsatisfactory conduct in relation to correspondence between the respondent and a firm of legal practitioners acting for his client's wife in the family law proceedings [Charge 3].
5. The principal registrar is to appoint a date, time and place for the resumption of this hearing to hear submissions as to any further orders to be made consequent upon these findings.

Mr. J.G. Santamaria QC and Ms L. Hannon of counsel.

1. Mr. Zvi Shulsinger is an Australian legal practitioner. He acted for Mr. Henry Yu in a family law proceeding in 2004.
2. Ms Gladys Liu was the wife of Mr. Yu. Lander & Rogers, a firm of legal practitioners, acted for Ms Liu in the family law proceeding.
3. Lander & Rogers made a complaint about Mr. Shulsinger to the Legal Services Commissioner, who investigated the complaint. The Commissioner then lodged an application to the Tribunal that charged Mr. Shulsinger with disciplinary offences.

1. The Legal Services Commissioner charged Mr. Shulsinger with two counts of professional misconduct or alternatively misconduct, and one count of unsatisfactory professional conduct or alternatively unsatisfactory conduct.
2. By agreement between the parties, the charges were laid and determined in alternative form to avoid difficulties that arise in interpreting some of the transitional provisions in Schedule 2 to the Legal Profession Act 2004.

1. Charge 1 alleges that Mr. Shulsinger is guilty of professional misconduct or alternatively misconduct, being misconduct at common law, in relation to what is described as "the First Affidavit".
2. Misconduct in a professional capacity, often described as misconduct at common law, has been defined consistently for many years as conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where the definition was formulated in a case involving a medical practitioner; Re a Solicitor: ex parte The Law Society [1912] 1 KB 302 where the definition was adopted in a case involving a solicitor; Myers v Elman [1940] AC 282 where the definition was approved by the House of Lords; Grahame v AG of Fiji [1936] 2 All ER 992 where the definition was approved by the Privy Council; and Re a Solicitor [1960] VicRp 96; [1960] VR 617 where the definition was applied in Victoria.
3. Misconduct at common law continues to apply to Australian legal practitioners in Victoria by virtue of the word "includes" in the meaning of 'professional misconduct' in s.4.4.3(1) of the Legal Profession Act 2004, and the word "including" in paragraph (a) of the meaning of 'misconduct' in s.137 of the Legal Practice Act 1996.
4. The First Affidavit is an affidavit of documents sworn by Mr. Yu in the family law proceeding. It is alleged that Mr. Shulsinger prepared and engrossed the First Affidavit, presented the affidavit to Mr. Yu intending it to be sworn, administered the oath to Mr. Yu, and then served a copy of the affidavit upon Ms Liu. It is further alleged that Mr. Shulsinger took those steps in gross neglect of his duty as an officer of the Court.
5. The alleged gross neglect of duty is fivefold. First, that Mr. Shulsinger did not explain to Mr. Yu that he must disclose all relevant documents which were or once had been in his possession power and control. Secondly, that Mr. Shulsinger did not carefully go through any documents proposed to be disclosed by Mr. Yu to make sure as far as possible that no relevant documents had been omitted from the affidavit prior to the affidavit being sworn. Thirdly, that Mr. Shulsinger did not study the proposed affidavit and form his own opinion as to its adequacy and whether any material had been left out. Fourthly, that Mr. Shulsinger did not make his own independent appraisal of the proceeding and assess what documents Mr. Yu was likely to have or to have had in his possession, power and control, including any documents which were or once were in the possession of Mr. Shulsinger. Fifthly, and finally, that Mr. Shulsinger did not take sufficient care to ascertain the accuracy of the content of the affidavit.
6. Particulars of Charge 1 appear in paragraphs 1 to 8 of the application.
7. Paragraph 3 alleges that, in the period 2000 to 2004, Mr. Shulsinger acted for Mr. Yu in relation to five transactions. First, the purchase of real property at Mooroolbark. Secondly, the purchase of a pharmacy business at Richmond. Thirdly, the purchase of a pharmacy business and real property at Mount Waverley. Fourthly, the sale a pharmacy business at Rowville. Fifthly, the purchase of a real property in Queen Street Melbourne.
8. Paragraph 4 alleges that the nature and extent of Mr. Yu's business and property interests was an issue in the family law proceeding. Paragraph 4 then proceeds to make further allegations, as follows:

(a) that the proceeding was a "financial case" within the meaning of the Family Law Rules 2004, and that duties and obligations set out in the rules applied;

(b) that an affidavit sworn by Ms Liu on 26 March 2004 deposed that she was not aware of the existence and value of the property accumulated during the marriage, and that she did not expect Mr. Yu to be forthcoming with that information in the absence of an order for discovery;

(c) that Mr. Shulsinger wrote a letter to Lander & Rogers on 23 April 2004 stating that the major items of matrimonial property comprised interests in four properties and three pharmacies;

(d) that Lander & Rogers wrote a letter to Mr. Shulsinger on 27 April 2004 seeking identification and valuations of the properties and pharmacies, and seeking income tax returns and financial accounts in relation to them;

(e) that Mr. Shulsinger replied to Lander & Rogers on 14 May 2004 conveying his instructions that Mr. Yu owned four real properties and three pharmacy businesses, enclosing copies of Mr. Yu's income tax returns for 2001 and 2002, and authorising Lander & Rogers to obtain further information from Mr. Yu's accountant;

(f) that Lander & Rogers wrote a letter to Mr. Shulsinger on 14 May 2004 seeking confirmation that the pharmacies mentioned represented the entirety of the pharmacies in which Mr. Yu had an interest;

(g) that an order was made by the Family Court on 18 May 2004 which required Mr. Yu to serve a response, a financial statement and any relevant affidavit by 8 June 2004, and that documents be exchanged by 18 June 2004;

(h) that Lander & Rogers wrote a letter to Mr. Shulsinger on 19 May 2004 seeking information and documents relating to a superannuation fund, a proprietary company, Tattslotto agencies and various real properties associated with Mr. Yu;

(i) that Lander & Rogers wrote a letter to Mr. Shulsinger on 24 May 2004 seeking documents relating to a pharmacy buying group;

(j) that on 9 June 2004 Mr. Shulsinger filed and served a Form 13 Financial Statement sworn by Mr. Yu and witnessed by Mr. Shulsinger which disclosed interests held by Mr. Yu in nine properties and three pharmacy businesses at Heidelberg, Karingal and Springvale. The Financial Statement did not disclose the Richmond, Mount Waverley or Rowville transactions in respect of which Mr. Shulsinger had acted for Mr. Yu;

(k) that on 21 July 2004 Lander & Rogers wrote a follow up letter to Mr. Shulsinger requesting documents in relation to the pharmacy buying group;

(l) that on 22 July 2004 Mr. Shulsinger replied to Lander & Rogers conveying his instructions that no documents existed in relation to Mr. Yu's interest in a pharmacy buying group; and

(m) that an order was made by the Family Court on 28 July 2004 which required Mr. Yu to file and serve within 21 days an Affidavit of Documents referring to all relevant documents in his possession power or control, including but not limited to four named companies, a named discretionary trust, and any other company or trust.

1. Paragraph 5 sets out the duties alleged to be owed by Mr. Shulsinger to the Court.
2. Paragraph 6 alleges that Mr. Shulsinger prepared an Affidavit of Documents ("the First Affidavit"), presented it to Mr. Yu for swearing, administered the oath to Mr. Yu, and then served the affidavit.
3. Paragraph 7 alleges that the First Affidavit set out in its first schedule the documents in Mr. Yu's possession, custody or power; set out in its second schedule the documents previously but no longer in Mr. Yu's possession, custody or power; and deposed that neither Mr. Yu, nor his solicitor, nor any other person have, or ever had, documents relevant to the proceeding other than the documents in the schedules.
4. Paragraph 8 alleges that, notwithstanding Mr. Shulsinger's knowledge of matters referred to in previous paragraphs and in neglect of his professional duty, part one of the first schedule did not disclose documents relating to Mr. Yu's interests in the property and businesses at Mooroolbark, Queen Street Melbourne and Richmond. It was further alleged in paragraph 8 that neither schedule one nor schedule two of the First Affidavit disclosed the existence of documents relating to the Mooroolbark, Richmond, Mount Waverley, Rowville or Queen Street Melbourne transactions in relation to which Mr. Shulsinger had acted for Mr. Yu.

1. Charge 2 alleges that Mr. Shulsinger is guilty of professional misconduct or alternatively misconduct, being misconduct at common law, in relation to what is described as "the Second Affidavit". The Second Affidavit also is an affidavit of documents relating to the family law proceeding.
2. It is alleged that Mr. Shulsinger prepared and engrossed the Second Affidavit, presented the affidavit to Mr. Yu intending it to be sworn, administered the oath to Mr. Yu, and then filed the affidavit and served a copy upon Ms Liu. It is further alleged that Mr. Shulsinger took those steps in gross neglect of his duty as an officer of the Court.
3. The alleged gross neglect of duty again is fivefold, being the same neglect alleged in relation to Charge 1.
4. Particulars of Charge 2 appear in paragraphs, 1, 5, and 9 to 13 of the application.
5. Paragraph 5, as previously mentioned, sets out the duties alleged to be owed by Mr. Shulsinger to the Court.
6. Paragraph 9 alleges that, after service of the First Affidavit, the nature and extent of Mr. Yu's business and property interests continued to be an issue in the family law proceeding. Paragraph 9 then proceeds to make further allegations, as follows:

(a) that Lander & Rogers wrote a letter to Mr. Shulsinger on 1 September 2004 seeking to ascertain whether Mr. Yu had an interest in a pharmacy at The Alfred Hospital;

(b) that Lander & Rogers wrote to Mr. Shulsinger the following day, 2 September 2004, asking whether Mr. Yu had an interest within the last five years in a property or a pharmacy business at Scoresby;

(c) that on 2 September 2004 the Family Court made an order requiring Mr. Yu to provide particulars of all real properties and businesses in which he had an interest since 1 January 1998;

(d) that Mr. Shulsinger responded with a letter to Lander & Rogers dated 9 September 2004; that the response disclosed Mr. Yu's interest in the properties at Mooroolbark, Mount Waverley and Queen Street Melbourne; but did not disclose the purchase of Richmond or the sale of Rowville in relation to each of which Mr. Shulsinger had acted for Mr. Yu;

(e) that Lander & Rogers wrote a letter to Mr. Shulsinger on 10 September 2004 expressing concern about the level of disclosure, and proposing that a hearing fixed for 15 September 2004 be adjourned to enable Mr. Yu to prepare a further Affidavit of Documents; and

(f) that an order was made by the Family Court on 15 September 2004, requiring Mr. Yu to provide a further Affidavit of Documents within 21 days.

1. Paragraph 10 alleges that Mr. Shulsinger prepared an Affidavit of Documents ("the Second Affidavit"), presented it to Mr. Yu for swearing, administered the oath to Mr. Yu, and then filed and served the affidavit.
2. Paragraph 11 alleges that the Second Affidavit, like the First Affidavit, set out in its first schedule the documents in Mr. Yu's possession, custody or power; set out in its second schedule the documents previously but no longer in Mr. Yu's possession, custody or power; and deposed that neither Mr. Yu, nor his solicitor, nor any other person have, or ever had, documents relevant to the proceedings other than the documents in the schedules.
3. Paragraph 12 alleges that the Second Affidavit disclosed documents additional to those disclosed in the First Affidavit, including files of documents concerning properties or businesses at Mooroolbark, Mount Waverley and Queen Street Melbourne in relation to which Mr. Shulsinger had acted for Mr. Yu.
4. Paragraph 13 alleges that the Second Affidavit did not disclose any document concerning the purchase of Richmond, in relation to which Mr. Shulsinger had acted for Mr. Yu, and in respect of which documents necessarily must have been in the possession, power of control of Mr. Yu or Mr. Shulsinger. [Paragraph 13 was amended by consent on 4 November 2009 to delete reference to a failure to disclose any document concerning the sale of Rowville.] Paragraph 13 concludes with the allegation that the Second Affidavit thereby was "inaccurate, incomplete and liable to mislead both the Court and Lander & Rogers and its client, Ms Liu".

1. Charge 3 alleges that Mr. Shulsinger is guilty of unsatisfactory professional conduct within the meaning of s. 4.4.2 of the Legal Profession Act 2004, or alternatively unsatisfactory conduct as defined by paragraph (a) of the meaning of unsatisfactory conduct in s.137 of the Legal Practice Act 1996. For practical purposes, the meanings are the same.
2. 'Unsatisfactory professional conduct' is defined by the 2004 Act as including "conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner".
3. 'Unsatisfactory conduct' is defined by the 1996 Act as including "conduct by a legal practitioner or firm in the course of engaging in legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner or firm".
4. The charge alleges that "in your written correspondence with Lander & Rogers during the period 23 April 2004 to 9 September 2004 you failed to take sufficient care to ensure that the information and instructions conveyed by you to Lander & Rogers were accurate and complete and not liable to mislead Lander & Rogers and its client Ms Liu as to the true position".
5. The correspondence is the correspondence passing between Lander & Rogers and Mr. Shulsinger, already set out by the Tribunal.

1. The Legal Services Commissioner did not call any witness to give oral evidence, or file any affidavit in support of the present application.
2. The Commissioner sought to make out his case by tendering six bundles of documents marked A1 to A6, being extracts from six files compiled by Mr. Shulsinger.
3. Counsel for Mr. Shulsinger informed the Tribunal that Mr. Shulsinger did not challenge the authenticity of the documents.
4. However, Mr. Shulsinger claimed that Mr. Yu is entitled to legal professional privilege in relation to some of the documents.
5. Mr. Shulsinger did not give evidence, or call a witness. Indeed, counsel for Mr. Shulsinger maintained that the obligation of Mr. Shulsinger to preserve Mr. Yu's privilege prevented Mr. Shulsinger from giving evidence.

1. Lander & Rogers lodged its complaint with the Legal Services Commissioner on 10 March 2006. The Commissioner investigated the complaint.
2. As part of an investigation the Commissioner has power to require an Australian legal practitioner to provide documents to the Commissioner: s.4.4.11(1) Legal Profession Act 2004. The Commissioner formally required Mr. Shulsinger to provide the files that he compiled when acting for Mr. Yu. Mr. Shulsinger provided the files.

1. The extracts from the files relate to the purchase of real property at Shop 9, 77 Brice Avenue Mooroolbark in 2000 [exhibit A1]; the purchase of real property and a pharmacy business at Mount Waverley in 2003, and the sale of the same pharmacy business in 2004 [exhibit A2]; financial arrangements with Faulding relating to the pharmacy businesses at Rowville and Mount Waverley in 2003, and the sale of the pharmacy business at Rowville in 2003 [exhibit A3]; the purchase of real property in Queen Street Melbourne in 2003 [exhibit A4]; the purchase of a pharmacy business at Richmond in 2003-2004 [exhibit A5]; and the family law proceeding in 2004 [exhibit A6].
2. The Commissioner relied upon the extracts to show that Mr. Shulsinger should have been familiar with the transactions recorded in the files when he prepared the First Affidavit (the subject matter of Charge 1), the Second Affidavit (the subject matter of Charge 2), and his correspondence with Lander & Rogers (the subject matter of Charge 3).
3. The present hearing commenced on 4 November 2009. Two days earlier, on 2 November 2009, the Tribunal received a facsimile from Wisewould Mahony, a firm of legal practitioners acting for Mr. Yu. The facsimile stated that Mr. Yu had not been consulted by Mr. Shulsinger about the release of files to the Commissioner; that Mr. Yu had not waived legal professional privilege in respect of the files; and that Mr. Yu continued to maintain his right to legal professional privilege.
4. Counsel for Mr. Shulsinger tendered a list of documents [exhibit R1] and maintained that Mr. Shulsinger was obliged to preserve Mr. Yu's privilege in respect of the listed documents. Counsel for the Commissioner submitted that some of the documents in the list were not privileged.

1. Legal professional privilege was described by the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 @ [9] as "a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings".
2. The High Court proceeded to say @ [11] that "... statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect".
3. There are clear words of abrogation in the Legal Profession Act 2004. Where a client lodges a complaint about his or her legal practitioner, the client is taken to have waived legal professional privilege, or the benefit of any duty of confidentiality, to enable the Commissioner to deal with the complaint: s.4.2.15. Counsel for the Commissioner accepted that s.4.2.15 has no application in the present proceedings, as the complaint about Mr. Shulsinger was not lodged by his client Mr. Yu.
4. However, counsel for the Commissioner submitted that different provisions in the Act abrogated by 'necessary intendment' the legal professional privilege otherwise enjoyed by Mr. Yu. Counsel referred to s.4.4.7(1) (which requires the Commissioner "to investigate each disciplinary complaint"); to s.4.4.11(1) (which authorises the Commissioner to require an Australian legal practitioner under investigation to provide an explanation of the practitioner's conduct, and any other information or documents); and to s.4.4.13(2) (a mandatory provision which requires the Commissioner to commence disciplinary proceedings in the Tribunal if the Commissioner is satisfied that "there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct").
5. Counsel submitted that a 'necessary intendment' of these provisions is that the Commissioner has power to use documents received in the course of an investigation in order to prove professional misconduct. Counsel relied upon Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217, a case where a legal practitioner charged with disciplinary offences contended that trust account records had been obtained in breach of legal professional privilege and were inadmissible. The following passages are pertinent:

"The whole point of these provisions is to provide a means by which the records of the practitioner "relating to trust moneys" can be inspected. It seems to us that in permitting the examiner to require production of records relating to trust monies or trust accounts, and permitting the disclosure of that material to the Board or to an inquiry, the legislature must have, by necessary implication, abrogated legal professional privilege to the extent necessary to permit the consideration of all of the practitioner's records which answer the description of documents "relating to trust moneys". [@ 243.]

"It would undermine the purpose of the privilege if practitioners were able to shield themselves from investigation by the body charged with that responsibility by invoking legal professional privilege". [@ 250.]

"... we would incline to the view that the Tribunal was correct in its conclusion that legal professional privilege was abrogated by the Act, so far as the function of the Trust Account inspector and the course of evidence before the Tribunal are concerned." [@ 242. Emphasis in italics added by the Tribunal.]

1. Counsel for Mr. Shulsinger made a submission to the contrary, namely that the provisions relied upon by the Commissioner do not abrogate legal professional privilege by necessary implication.
2. Counsel referred to s.4.4.11(6) which, so far as is relevant in the present case, provides that a legal practitioner may not refuse to comply with a requirement under s.4.4.11 on the ground of "any duty of confidence" or on the ground that production "may tend to incriminate the person". Counsel submitted that the legislature clearly had addressed the grounds upon which a legal practitioner might properly refuse to comply with a requirement made under the section, thus leaving no room for necessary implication. The legislature had set out two grounds upon which a legal practitioner could not refuse to comply, but did not set out the ground of legal professional privilege.
3. Counsel for Mr. Shulsinger also pointed out that the legislature had addressed waiver of legal professional privilege in s.4.2.15, and limited it to waiver of legal professional privilege held by a complainant. Again, counsel contended that this left no room for necessary implication.
4. Counsel for Mr. Shulsinger also drew a distinction between the related concepts of the duty of confidence owed by a legal practitioner to a client and the legal professional privilege held by a client. In a written submission, counsel submitted that "All communications protected by client legal privilege must have the necessary quality of confidence as against the person seeking to rely upon the communication. But only communications which are confidential in that sense and which are made for a privileged purpose, or tend to disclose such a communication, are privileged. Much that is protected by professional client confidentiality is not protected by client legal privilege". From that base, counsel submitted that the legislature has addressed the duty of confidentiality (and prevented a legal practitioner from relying upon it in order to withhold documents) and addressed legal professional privilege (and not prevented a legal practitioner from relying upon it in order to withhold documents, other than where the complaint is made by a client of the practitioner, in which case legal professional privilege is taken to be waived).
5. Of course, Mr. Shulsinger did produce the relevant files to the Commissioner in response to a requirement made under s.4.4.11. He did not seek to withhold the files in order to preserve any legal professional privilege to which Mr. Yu was entitled. However, counsel for Mr. Shulsinger submitted that the privilege is that of the client, and can be waived expressly only by the client: Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26; (2009) 166 ACTR 14 @ [17]. Counsel submitted that any documents the subject matter of legal professional privilege remain privileged, in the absence of waiver, despite their release to the Commissioner: Re Stanhill Consolidated Ltd [1967] VicRp 92; [1967] VR 749 @ 751-752. The outcome, according to the submission, is that Mr. Shulsinger continues to have an obligation to protect and assert Mr. Yu's entitlement to privilege, which includes not giving evidence about privileged matters: Re Stanhill Consolidated Ltd @ 752; and Legal Services Board v Garde-Wilson [2007] VCAT 1406 @ [89].
6. The Tribunal accepts the submissions made on behalf of Mr. Shulsinger. The result is, first, that legal professional privilege has not been abrogated by necessary implication and, secondly, that legal professional privilege has not been waived as a consequence of Mr. Shulsinger releasing files to the Commissioner that might contain privileged documents.

1. The file extracts, exhibits A1 to A6, were examined during the course of the hearing.
2. The extracts included letters from Mr. Shulsinger to Mr. Yu; a facsimile from Mr. Yu to Mr. Shulsinger; file notes recording conferences and telephone discussions between Mr. Shulsinger and Mr. Yu; a letter from Mr. Yu's accountant to Mr. Shulsinger; file notes recording telephone discussions between Mr. Shulsinger and Mr. Yu's accountant; emails passing between Mr. Shulsinger and an agent handling the sale of a pharmacy business; a memorandum to counsel engaged by Mr. Shulsinger to act for Mr. Yu; and a file note recording a discussion between Mr. Shulsinger and counsel for Mr. Yu. Mr. Shulsinger contended that all of these documents are privileged.
3. It was submitted on behalf of the Commissioner that some of these documents, recording discussions between Mr. Shulsinger and Mr. Yu or Mr. Yu's agents, are not privileged because they were not created for the dominant purpose of obtaining advice.
4. The response made on behalf of Mr. Shulsinger relied in part upon the following passage in Balabel v Air India [1988] 1 Ch 317 @ 330:

"Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. ... There will be a continuum of communication and meetings between the solicitor and client. ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. ... Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context."

1. The judgment of Young J in AWB Ltd v Cole (2006) 152 FCR 382 @ [85] to [100] shows that the above passage in Balabel was approved by the House of Lords in Three Rivers District Council v Bank of England (No.6) [2004] UKHL 48; [2005] 1 AC 610, and that it has been much followed in Australia.
2. The Tribunal believes that the submissions concern different issues, about which there can be almost no dispute.
3. First, a document will not be privileged unless it was created for the dominant purpose of giving or obtaining advice ('the dominant purpose test'): Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49.
4. Secondly, a document will not be privileged unless it was created for the purpose of giving or obtaining advice ('the advice test'). A document will satisfy the advice test if it is part of the "continuum of communication and meetings between the solicitor and client ... aimed at keeping both informed so that advice may be sought and given": Balabel.

RULING ON LEGAL PROFESSIONAL PRIVILEGE CLAIMED IN RESPECT OF THE BUNDLES OF DOCUMENTS WHICH ARE EXHIBITS A1 TO A6:

1. Many of the 'documents' for which privilege is claimed are, in fact, file notes written on other documents. The file notes record discussions between identifiable persons. However, the brevity of some of the file notes makes it difficult to determine whether they are records that satisfy the dominant purpose test and the advice test.
2. A small number of documents relate to communications between Mr. Shulsinger and agents for Mr. Yu. The letter from Mr. Yu's accountant to Mr. Shulsinger, the file notes recording telephone discussions between Mr. Shulsinger and Mr. Yu's accountant, and the emails passing between Mr. Shulsinger and an agent handling the sale of a pharmacy business fall into that category. However, there is authority for the proposition that legal professional privilege extends to communications between a client's agent and the legal practitioner acting for the client, at least if the dominant purpose test and the advice test are satisfied: Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 @ 333.
3. With one exception, the Tribunal is satisfied on a balance of probabilities that all of the documents listed in exhibit R1 are privileged documents. The exception in the document numbered 13, a facsimile from Mr. Yu to Mr. Shulsinger dated 2 March 2004. Apart from the fact that it is a communication between a client and a legal practitioner, the facsimile gives no indication that it might be a privileged document.

THE LETTERS OF EXPLANATION WRITTEN BY MR. SHULSINGER:

1. The Legal Services Commissioner referred the complaint by Lander & Rogers to Law Institute of Victoria Limited to investigate as a delegate of the Commissioner: see s.4.4.9 of the Legal Profession Act 2004 as to the power of delegation. A delegate is obliged to investigate the complaint, and then report to the Commissioner: s.4.4.10.
2. On 27 April 2006, the Law Institute wrote a letter to Mr. Shulsinger. The letter referred to s.4.4.11 of the Act, and made a formal requirement under that section. It required Mr. Shulsinger to provide a full written explanation of his conduct in the matter, the subject of the complaint, within 14 days. Mr. Shulsinger provided a written explanation of his conduct in a letter dated 9 May 2006.
3. On 11 December 2006, the Law Institute wrote another letter to Mr. Shulsinger. The letter set out the result of the investigation "to date". It invited Mr. Shulsinger to provide "any further material which you wish me to consider prior to making a recommendation to the Legal Services Commissioner" and to "make a submission as to which of the courses open to the Legal Services Commissioner ... should be adopted".
4. The letter is what has come to be known as 'a Murray letter', a reference to the decision of NSW Court of Appeal in Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224. The decision is to the effect that a legal practitioner must be informed of the result of the investigation of a complaint, and given an opportunity to make a submission, before a decision is made as to further action.
5. Mr. Shulsinger responded by letter dated 20 February 2007. The letter is a further explanation of Mr. Shulsinger's conduct, rather than the provision of further material or the making of a submission as to the action to be taken by the Commissioner.
6. Counsel for Mr. Shulsinger claimed legal professional privilege in respect of the letters dated 9 May 2006 and 20 February 2007 written by Mr. Shulsinger to the Law Institute. The letters refer to instructions received from Mr. Yu. Some of the instructions were conveyed directly to Lander & Rogers in correspondence. Furthermore, the instructions appear to have been obtained to compile the Form 13 Financial Statement and the Second Affidavit, both of which were served upon Ms Liu. The Tribunal finds that the letters are, in substance, explanations of the conduct of Mr. Shulsinger. They are not subject to legal professional privilege.
7. Six documents were enclosed with Mr. Shulsinger's letter of 9 May 2006. Privilege was claimed in respect of the enclosures. The Tribunal is satisfied that one enclosure was created for the dominant purpose of giving or receiving advice, and is subject to legal professional privilege. The enclosure concerned is a memorandum to counsel dated 2 December 2004, prepared by Mr. Shulsinger.

THE DOCUMENTS THAT CAN BE RELIED UPON TO PROVE THE CHARGES:

1. Having ruled upon legal professional privilege, it is appropriate to record at this stage the documents that have been accepted into evidence and which can be relied upon by the Commissioner to prove the charges.
2. The Tribunal has accepted into evidence the six bundles of documents which are exhibits A1 to A6, other than the documents listed in exhibit R1 which are privileged (except item 13 in the list).
3. The Tribunal also has accepted into evidence the annexures to the Application to the Tribunal, save for one document enclosed with Mr. Shulsinger's letter to the Law Institute dated 9 May 2006 [the letter is annexure S]. The enclosure not accepted into evidence is the memorandum to counsel dated 2 December 2004, prepared by Mr. Shulsinger.

1. It is not alleged in any of the charges that Mr. Shulsinger acted intentionally or dishonestly.
2. Both Charge 1 and Charge 2 allege that Mr. Shulsinger is guilty of misconduct at common law in that he acted "in gross neglect of your duty as an officer of the Court".
3. Charge 3 alleges that Mr. Shulsinger is guilty of unsatisfactory professional conduct or alternatively unsatisfactory conduct in that he "failed to take sufficient care".
4. Misconduct at common law is proved by evidence that satisfies the common law definition of misconduct. Negligence may or may not amount to misconduct at common law: Re W.C. Moseley (1925) 25 NSWLR 174 @ 178. Much will depend upon whether the action or inaction amounting to negligence can properly be regarded as disgraceful or dishonourable conduct.
5. Gross negligence usually will suffice: Re Mayes [1974] 1 NSWLR 19. In that case a majority of the Court of Appeal stated @ 25 that "... there is no reason in principle why conduct which can be classified as negligent cannot amount to professional misconduct". The majority found @ 26 that "The overall disregard of the obligations ... laid down for the protection of the general public who deal with solicitors, is in this case ... so gross as to amount to professional misconduct at common law".
6. It is necessary to consider the duties alleged to have been grossly neglected. They are set out in paragraph 5 of the application, as I have mentioned.
7. First, it is alleged that Mr. Shulsinger owed a duty to the Court to explain to his client that his client must disclose all relevant documents which were, or once had been, in his client's possession, power or control. Counsel for the Commissioner referred the Tribunal to Woods v Martins Bank Ltd [1959] 1 QB 55 @ 60; EI Du Pont De Nemours & Co v Commissioner of Patents (1987) 83 ALR 499 @ 502; and Brookfield v Yevad Products Pty Ltd [2004] FCA 1164 @ [369]. These cases confirm the existence of such a duty, including a duty to inform a client that disclosure must include disclosure of documents "which might be destructive of their own case": Brookfield @ [369].
8. Secondly, it is alleged that Mr. Shulsinger owed a duty to the Court to carefully go through any documents proposed to be disclosed by his client to make sure as far as possible that no relevant document had been omitted prior to his client swearing any Affidavit of Documents. Counsel for the Commissioner relied in particular upon Myers v Elman [1940] AC 282 @ 322 where Lord Wright said that a solicitor "has a peculiar duty in these matters as an officer of the Court carefully to investigate the position and as far as possible see that the order [requiring discovery of documents] is complied with".
9. Thirdly, it is alleged that Mr. Shulsinger owed a duty to the Court to study any proposed Affidavit of Documents and form his own opinion as to its adequacy and whether any material had been left out. Counsel for the Commissioner relied upon EI Du Pont De Nemours & Co @ 502, where the Federal Court confirmed the existence of a duty in those terms.
10. Fourthly, it is alleged that Mr. Shulsinger owed a duty to the Court to make his own independent appraisal of the proceeding and assess what documents his client was likely to have, or to have had, in his possession, power or control, including any documents which were, or once were, in Mr. Shulsinger's own possession [emphasis in italics added by the Tribunal]. Counsel for the Commissioner referred to Preston v Harbour Pacific Underwriting Management Pty Ltd [2008] NSWCA 216 @ [41] where Handley AJA said that "A party and his solicitor are not entitled to rely on their unrefreshed recollection of the existence and whereabouts of relevant documents. Both are required to undertake appropriate searches and make appropriate inquiries for documents which would assist their case as well as for those which would not".
11. Fifthly, it is alleged that Mr. Shulsinger owed a duty to the Court to take care to ensure the accuracy of any Affidavit of Documents relied upon by his client in the family law proceeding. Counsel for the Commissioner referred the Tribunal to Myers v Elman @ 319, where Lord Wright confirmed that "a solicitor may be held bound in certain events to satisfy himself ... as to the accuracy of an affidavit which his client swears".
12. Sixthly, and finally, it is alleged that Mr. Shulsinger owed a duty to the Court because of Rule 1.08(2) of the Family Law Rules 2004. That duty was said to arise in the following way. Rule 1.04 provides that "The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and to the court that is reasonable in the circumstances of the case". Rule 1.08(1) provides that "Each party has a responsibility to promote and achieve the main purpose including ... complying with the duty of disclosure". Rule 13.01(1) provides that "Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner". Rule 1.08(2) then provides that "A lawyer for a party has a responsibility to comply, as far as possible, with" Rule 1.08(1).
13. The Tribunal accepts that Mr. Shulsinger owed the six duties to the Court that have just been outlined.
14. The next step is to return to the Charges, and to determine whether the documents admitted into evidence are sufficient to prove the Charges.

1. Charge 1 is set out at the beginning of these reasons.
2. To establish that Mr. Shulsinger acted in gross neglect of his duty as an officer of the Court in relation to the First Affidavit, the Commissioner relied upon the following documents:

(a) extracts from the file relating to the purchase of the real property at Shop 9, 77 Brice Avenue Mooroolbark [exhibit A1]. The extracts include a tax invoice dated 16 August 2000 rendered by Mr. Shulsinger for "professional costs in connection with purchase of freehold property". The tax invoice is addressed to "Mr. Yu and Ms Loh" and relates to "Shop 9, 77 Brice Avenue Mooroolbark". Standing alone, the extracts would establish that Mr. Shulsinger acted for Mr. Yu and Pearly Chin Yin Loh when they purchased that property in 2000.

The interest of Mr. Yu in Shop 9 was not disclosed in his Financial Statement dated 9 June 2004. No document relating to the purchase of Shop 9 was referred to in Mr. Yu's First Affidavit sworn on 31 August 2004. However, the property was listed as currently held in Mr. Shulsinger's letter to Lander & Rogers of 9 September 2004. [The real property at Shop 12, 77 Brice Street Mooroolbark was disclosed in the Financial Statement. No document relating to Shop 12 was referred to in the First Affidavit. Shop 12 was listed as being currently held in Mr. Shulsinger's letter to Lander & Rogers dated 9 September 2004.];

(b) documents which assert that Mr. Yu and Ms Liu separated in May 2002 [annexure AA (affidavit of Ms Liu sworn 26 March 2004 paragraph 3)], or separated first in September 2001 and secondly in April 2002 [annexure G (affidavit of Mr. Yu sworn 17 May 2004 paragraph 2)];

(c) extracts from the file relating to the purchase of real property and a pharmacy business at Mount Waverley in 2003, and the sale of the same pharmacy business in 2004 [exhibit A2], ignoring privileged documents.

One document extracted is a letter dated 20 January 2003 sent by Mr. Shulsinger to Mr. Yu. The heading to the letter is "re Purchase from Faulkner Property: 56 Essex Road Mount Waverley". The letter enclosed a Contract of Sale of Real Estate, a Contract of Sale of Business, and a Transfer for signature by Mr. Yu.

A second document extracted is a letter dated 24 January 2003 sent by Mr. Shulsinger to the solicitor for the vendor. The heading to the letter is "Re: Yu from Faulkner Property: 56 Essex Road Mount Waverley". Among the documents enclosed for exchange was a "Contract of Sale of Business in the name of alternate pharmacist in Henry's Yu's group, Hean Yee Goh". Standing alone, the letter would establish that the purchase of the pharmacy business was to proceed in the name of Hean Yee Goh, rather than Mr. Yu.

A third document extracted is a letter dated 21 February 2003 sent by Mr. Shulsinger to Mr. Yu. The heading to the letter is "re Essex Heights, Rowville and Refinancing". The letter enclosed "Transaction Statement and a Statement of Adjustments for your records". It also enclosed "Guarantee Facility Deed (in duplicate, Acknowledgments and Certificates of Witness for signature and return".

A fourth documents extracted is a letter dated 9 July 2004 sent by Mr. Shulsinger to Mr. Yu. The heading to the letter is "Re: Sale of Business: Essex Height Pharmacy Transfer of Lease: 56 Essex Road Mount Waverley". The letter enclosed "security documents, Contract of Sale and Transfer of Lease for execution by the parties and return".

A fifth document extracted is a tax invoice dated 2 August 2004, rendered by Mr. Shulsinger to Mr. Yu. The invoice refers to "our professional costs in connection with Sale of Business, including preparation of contract, transfer of lease, execution, and all necessary attendances and correspondence" and to "our professional costs in connection with security documents, including perusal, arranging execution & witnessing, including all necessary attendances and correspondence".

The extracts standing alone would establish that Mr. Yu purchased the real property. The extracts standing alone would establish that the pharmacy business was purchased by Hean Yee Goh, and sold, and that Mr. Yu was involved in the financing of the pharmacy business;

(d) extracts from the file concerning financial arrangements made with Faulding in 2003 relating to the pharmacy businesses at Rowville and Mount Waverley [exhibit A3], ignoring privileged documents.

One document extracted is a letter dated 30 January 2003, sent by Mr. Shulsinger to the solicitor for Faulding. The letter is headed "Re: H. Yu and D. Do and H. Goh and Fauldings ... Property; Rowville Lakes Pharmacy and Essex Heights Pharmacy". [The Essex Heights Pharmacy is at Mount Waverley.] The only sentence in the letter is "We enclose copy of proposed Lease Schedule and Transfer of Lease to assist you with preparation of security documents". Standing alone, the letter would establish that Mr. Shulsinger acted for Mr. Yu, Doris Do and Hean Yee Goh in relation to proposed security documents associated with the pharmacies at Rowville and Mount Waverley;

A second document extracted is headed Certificate of Witness. It bears the date "the [blank] day of [blank] 2003". The document refers to seven security documents entered into by Faulding. Mr. Yu is stated to be a party to three of the security documents. Doris Do is stated to be a party to four of the security documents. Hean Yee Goh is stated to be a party to three of the security documents. Eight other persons or corporate entities (other than Faulding) are stated to be parties to one or more of the seven security documents. The heading to the Certificate of Witness refers to Rowville Lakes Pharmacy and Essex Heights Pharmacy at Mount Waverley. Mr. Shulsinger accepted the authenticity of all tendered documents, but the document is unsigned.

A third documents extracted is a letter from the solicitor for Faulding to Mr. Shulsinger dated 30 January 2003. The letter is headed "[Two Faulding companies] Doris Do and Hean Goh". The letter enclosed, among other things, the seven security documents referred to in the Certificate of Witness, and therefore included documents to be signed by Mr. Yu. It asked Mr. Shulsinger to "have the enclosed documents executed and returned to us at your earliest convenience". The heading to the letter referred only to Doris Do and Hean Goh, but the Tribunal would draw an inference that Mr. Shulsinger also received the security documents for execution by Mr. Yu.

A fourth extracted document is a Deed of Release, dated 12 May 2003. The Deed is executed by Doris Do, two Faulding companies and two other corporate entities. The effect of the Deed is to release Doris Do from three security documents, all dated 3 February 2003, relating to Rowville Lakes Pharmacy at Shop 11, 150 Kelletts Road Rowville or relating to premises at that address. The three security documents accord with three of the security documents referred to in the document headed Certificate of Witness. The Deed is consistent with a sale of the pharmacy business at Rowville by Doris Do.

A fifth document extracted is a facsimile dated 12 May 2003 sent by the solicitor for Faulding to Mr. Shulsinger. The heading refers to Faulding companies, Doris Do, and the sale of Rowville Lakes Pharmacy. The facsimile informed Mr. Shulsinger that the cheques to be provided at settlement were to include a cheque payable to Faulding "being trade debt", and a cheque payable to Bank of Melbourne for "all remaining funds to be applied to various loans held by the Yu Group". In relation to the amount payable to the Bank of Melbourne, the facsimile directed that specified sums were to be applied to nominated accounts held by Henry Yu with the Bank. Standing alone, the letter would establish that the pharmacy business at Rowville was sold before Mr. Yu swore the First Affidavit on 31 August 2004.

A combination of the extracted documents in exhibit A2 relating to the pharmacy business at Mount Waverley, and the security documents being the first, second and third extracted documents in exhibit A3 insofar as they relate to the pharmacy business at Mount Waverley, standing alone would establish that Mr. Yu had a financial interest in the pharmacy business at Mount Waverley.

The five extracted documents in exhibit A3 as they relate to the pharmacy business at Rowville, in combination, would establish in the absence of evidence to the contrary that Mr. Yu had a financial interest in the pharmacy business at Rowville;

(e) extracts from the file relating to the purchase of real property in Queen Street Melbourne in 2003 [exhibit A4]. The extracts include a tax invoice dated 18 June 2003 rendered by Mr. Shulsinger for "professional costs in connection with purchase of freehold property" and related matters. The tax invoice is addressed to "Mr. H. Yu" and relates to "207-213 Queen Street Melbourne". Ignoring privileged documents, standing alone the extracts would establish that Mr. Shulsinger acted for Mr. Yu when he purchased the property. The interest of Mr. Yu in the property was disclosed in his Financial Statement dated 9 June 2004, but no document relating to the purchase of that interest was referred to in the First Affidavit;

(f) extracts from the file relating to the purchase of a pharmacy business in Richmond in 2003-2004 [exhibit A5], ignoring privileged documents.

One document extracted is a letter dated 17 June 2003 written by Mr. Shulsinger to the solicitor for the vendor of a pharmacy business at Richmond. The letter stated that Mr. Shulsinger acted for the purchaser. The heading indicated that the purchaser was "Yu". The letter also stated that ... "we advise that our client is the principal of a group of 13 pharmacists, each of which deal with Mayne (ex Fauldings), which service and finance the Terry White Pharmacies (of which this pharmacy is one). ... Our client wishes to nominate Doris Do, one of the group, to purchase this pharmacy, and is willing to guarantee her obligations under the lease if necessary".

A second document extracted is a letter dated 21 July 2003 written by Mr. Shulsinger to the Bank of Melbourne. The first paragraph of the letter stated that "As discussed, we are arranging a transfer of the lease as part of the purchase of the above business by the Henry Yu Group". The heading referred to "Terry White Pharmacy, Victoria Gardens, Richmond".

A third document extracted is a letter dated 25 July 2003 written by Mr. Shulsinger to the solicitor for the vendor. The second paragraph stated that "We confirm our client already owns 3 pharmacies, and it will be necessary as part of this sale to have the Lessor's consent to a sub-lease of the premises to another pharmacist in due course".

A fourth document extracted is a letter dated 29 September 2003 written by Mr. Shulsinger to the solicitor for the vendor. The letter stated "We are instructed our client wishes to proceed, but is awaiting a written confirmation of finance, which is anticipated this week". The heading to the letter is "Re: Yu from Argyrou".

A fifth document extracted is a Notice of Default dated 1 October 2003, sent by the solicitor for the vendor to Mr. Shulsinger. The notice stated that the purchaser alleged to be in default is "Henry Yu and/or nominee", and that the business concerned is "Terry White Chemist - Victoria Gardens" at "Shop S26 Victoria Gardens Shopping Centre".

A sixth documents extracted is a letter dated 21 October 2003 written by Mr. Shulsinger to the solicitor for Faulding. The letter stated that Mr. Shulsinger acted for Mr. Yu and Doris Do. It concluded by saying that "We confirm that the lessor requires Henry Yu to be the assignee, but Doris Do will operate the pharmacy" [emphasis in italics added by the Tribunal].

A seventh document extracted is a letter dated 30 October 2003 written by Mr. Shulsinger to the solicitor for Victoria Gardens Shopping Centre at Richmond. The letter stated that "As your client has required that Henry Yu be the tenant, whereas Doris Do is to be the manager of the business, and occupier of the premises, this arrangement is a breach of clause 18(1)(b) of the Lease. Please provide the consent in writing of the Landlord to this arrangement ..".

An eighth document extracted is a letter dated 6 November 2003 written by Mr. Shulsinger to the solicitor for Victoria Gardens Shopping Centre. The letter sets out the assets of Doris Do, including "Share in pharmacy group, with Henry Yu and others".

A ninth document extracted is a tax invoice dated 21 January 2004 rendered by Mr. Shulsinger for "professional costs in connection with purchase of business". The tax invoice is addressed to "Mr. Henry Yu" and relates to "Shop S26, Victoria Gardens Shopping Centre".

A tenth document extracted is a tax invoice dated 5 May 2004 rendered by Mr. Shulsinger for "professional costs in connection with stock dispute". The tax invoice is addressed to "Mr. Henry Yu" and relates to "Shop S26, Victoria Gardens Shopping Centre".

Standing alone, and ignoring privileged documents, the documents extracted from exhibit A5 would establish that Mr. Shulsinger acted for Mr. Yu in relation to the purchase of a pharmacy business at Richmond, to be purchased in the name of his nominee Doris Do and guaranteed by Mr. Yu if necessary. The same documents also would establish that Mr. Yu had a financial interest in the business;

(g) the affidavit sworn by Ms Liu on 26 March 2004 and filed on 1 April 2004 [annexure AA]. Ms Liu deposed that "During the marriage, the Husband and I accumulated substantial assets and wealth. My knowledge of our financial dealings is however limited. I have no knowledge at all of dealings the Husband has undertaken after separation" [paragraph 16]. Ms Liu also deposed that "I am not aware of our financial matters generally and our investments in particular. I cannot prepare, nor indeed settle these proceedings without full and frank disclosure by the Husband" [paragraph 19];

(h) the affidavit prepared by Mr. Shulsinger, and sworn by Mr. Yu before Mr. Shulsinger on 17 May 2004 [annexure G]. Mr. Yu deposed that "In addition to being a pharmacist, the owner of 3 pharmacies and part of a buying group with other pharmacists, I have invested in different ventures, businesses, and property over several years during my marriage to the Wife" [emphasis in italics added by the Tribunal];

(i) an order made by the Family Court on 18 May 2004 [annexure DD]. The order required the exchange of documents "... containing evidence about the financial matters mentioned in the party's Financial Statement (Form 13) (and not excluding any interest in any Pharmacy Buying Group)" [paragraph 22]. The order also required the exchange of documents "... containing evidence about any purchase or disposal of property in the 12 months prior to and since separation" [also paragraph 22];

(j) a document extracted from the file concerning the Family Court proceedings [exhibit A6]. The document extracted is an account rendered dated 20 May 2004 sent by Mr. Shulsinger to Mr. Yu seeking payment of an account for "Purchase of Victoria Gardens Pharmacy";

(k) the Form 13 Financial Statement prepared by Mr. Shulsinger which contained an affidavit sworn by Mr. Yu before Mr. Shulsinger on 9 June 2004 [annexure G]. It was filed on the same date. The Financial Statement set out Mr. Yu's interests in eight real properties; plus three pharmacy businesses at Heidelberg, Karingal and Springvale (but not Richmond and Mount Waverley);

(l) an order apparently made by the Family Court on 28 July 2004 pursuant to undated minutes of consent orders [the minutes are annexure II to the Particulars of the Charge]. The minutes required Mr. Yu within 21 days to "file and serve an Affidavit of Documents referring to all relevant documents in his power possession or control including [specified documents] ... together with documents relating to any real property or business interests owned by him or the entities in which he or the entities have a legal or beneficial interest";

(m) the First Affidavit of Documents [annexure J], which was sworn by Mr. Yu before Mr. Shulsinger on 31 August 2004. In the affidavit, Mr. Yu deposed that "To the best of my knowledge, information and belief neither my Solicitor nor I nor any other person on my behalf have now or ever had in their possession custody or power any other document relating to these proceedings other than the documents enumerated in the first and second schedules" [emphasis in italics added by the Tribunal]. The schedules do not list any document relating to the purchase or sale of a real property or a pharmacy business; and

(n) the letter of explanation written by Mr. Shulsinger to the Law Institute on 20 February 2007 [annexure U]. In that letter Mr. Shulsinger explained that "In most situations in which I acted for Mr. Yu, the property purchases were invariably placed in his name, but the pharmacies were placed into the names of others in "the group". ... In these matters, Mr. Yu was in the hands of his lenders, a pharmaceutical company. It knew of Mr. Yu's and "the group" assets, and lent nearly all monies for purchases and took nearly all monies from sales". Standing alone, the letter would establish that Mr. Shulsinger was aware that Mr. Yu was in the hands of his lenders when involved in the purchase of a pharmacy business by the group.

1. Charge 2 is set out at the beginning of these reasons.
2. Following the amendment made on 4 November 2009, Charge 2 is limited to an allegation that Mr. Shulsinger acted in gross neglect of his duty as an officer of the Court in relation to the Second Affidavit in that he did not disclose any document concerning the purchase of the pharmacy business at Richmond, in relation to which Mr. Shulsinger had acted for Mr. Yu, and in respect of which documents necessarily must have been in the possession, power or control of Mr. Yu or Mr. Shulsinger.
3. The Second Affidavit was sworn by Mr. Yu on 1 October 2004. To prove Charge 2, the Commissioner relied upon documents that came into existence between the making of the First and Second Affidavits, namely:

(o) a letter written by Lander & Rogers to Mr. Shulsinger on 1 September 2004 [annexure K]. The letter stated that "Our client is concerned that your client's Affidavit of Documents does not accurately disclose all his business interests". It then asked whether Mr. Yu had an interest in a pharmacy at The Alfred Hospital. If read by Mr. Shulsinger, the letter would have brought to his attention that Mr. Yu might have business interests not disclosed in the First Affidavit;

(p) a letter written by Lander & Rogers to Mr. Shulsinger the following day, 2 September 2004 [annexure L]. The letter referred to a pharmacy business or a real property at Scoresby, and pointed out that Mr. Yu had not disclosed an interest in the business or property in his [First] Affidavit of Documents or in his Financial Statement. The letter then asked "Could you please as a matter of urgency advise whether or not your client does hold or has ever held an interest in such Pharmacy or real estate, either personally or through any entity or partnership structure". If read by Mr. Shulsinger, the letter would have brought to his attention that Mr. Yu might have business interests not disclosed in the First Affidavit;

(q) a consent order made by the Family Court on 2 September 2004 [annexure M]. The order required Mr. Yu to provide particulars of any real property or business in which he acquired an interest after 1 January 1998; any real property or business in which he sold an interest after 1 January 1998; and any real property or business in which he currently held an interest. "Interest" was expressed to include any interest "through any corporate entity (including any partnership or trust)". If read by Mr. Shulsinger, the order would have brought to his attention that Mr. Yu was required to provide particulars of his real property and business interests, both past and present, including interests not registered in his name;

(r) a letter written by Mr. Shulsinger to Lander & Rogers on 9 September 2004 [annexure N]. The letter set out the addresses of nine real properties acquired since 1 January 1998; the addresses of three real properties sold since 1 January 1998; and the addresses of twelve real properties currently held. The letter also set out the names and addresses of two businesses acquired since 1 January 1998; the name and address of one business sold since 1 January 1998; and the addresses of three pharmacy businesses currently held.

The letter disclosed for the first time the interests of Mr. Yu in real properties at Mooroolbark, Mount Waverley and Queen Street Melbourne. The letter did not disclose the interest of Mr. Shulsinger in the pharmacy business at Richmond, or disclose the sale of the pharmacy business at Rowville;

(s) a letter written by Lander & Rogers to Mr. Shulsinger on 10 September 2004 [annexure O]. The letter stated that "We note that for the first time your client has now disclosed the existence of a number of real properties which he holds. Our client continues to have serious concerns in relation to the level of disclosure made by your client. This has been exacerbated by the fact that your client has only seen fit to disclose the existence of these properties in compliance with Court Orders, rather than pursuant to his general obligation for full and frank disclosure". If read by Mr. Shulsinger, the letter would have brought to his attention that Mr. Yu might not be making full and frank disclosure;

(t) a consent order made by the Family Court on 15 September 2004 [annexure OO]. The order required Mr. Yu to make an Affidavit of Documents which was "to include all relevant documents in the Husband's possession, power and control in relation to the acquisition and sale of the real properties and businesses referred to in the letter from [Mr. Shulsinger] to Lander & Rogers Lawyers of 9 September 2004" [emphasis in italics added by the Tribunal]. If read by Mr. Shulsinger, the order would have brought to his attention that a second and comprehensive Affidavit of Documents was required;

(u) the Second Affidavit of Documents [annexure P], which was sworn by Mr. Yu before Mr. Shulsinger on 1 October 2004. In the affidavit, Mr. Yu deposed that "To the best of my knowledge, information and belief neither my Solicitor nor I nor any other person on my behalf have now or ever had in their possession custody or power any other document relating to these proceedings other than the documents enumerated in the first and second schedules" [emphasis in italics added by the Tribunal]. The schedules include "File documents" relating to the purchase of three pharmacies, but no documents relating to the purchase of the pharmacy business at Richmond, in respect of which Mr. Shulsinger had acted for Mr. Yu.

1. Charge 3 is set out at the beginning of these reasons. It is convenient to repeat the charge. The charge of unsatisfactory professional conduct or alternatively unsatisfactory conduct alleges that "in your written correspondence with Lander & Rogers during the period 23 April 2004 to 9 September 2004 you failed to take sufficient care to ensure that the information and instructions conveyed by you to Lander & Rogers were accurate and complete and not liable to mislead Lander & Rogers and its client Ms Liu as to the true position".
2. The correspondence passing between Lander & Rogers and Mr. Shulsinger during that period is among the documents already set out in these reasons, but it is convenient to isolate the correspondence:

(v) Mr. Shulsinger wrote a letter to Lander & Rogers on 23 April 2004 [annexure A] stating that the major items of matrimonial property comprised an interest in four properties and three pharmacies. Neither the properties nor the businesses were identified;

(w) Lander & Rogers wrote a letter to Mr. Shulsinger on 27 April 2004 [annexure B] seeking identification and valuations of the pharmacies and the properties, and seeking income tax returns and financial accounts in relation to them;

(x) Mr. Shulsinger wrote a letter to Lander & Rogers on 14 May 2004 [annexure C] conveying his instructions that Mr. Yu owned four real properties (Springvale, Karingal, Scoresby and Degraves Street Melbourne) and three pharmacy businesses (Heidelberg, Springvale and Karingal);

(y) Lander & Rogers wrote a letter to Mr. Shulsinger on 14 May 2004 [annexure D] seeking confirmation that the pharmacies mentioned represented the entirety of the pharmacies in which Mr. Yu had an interest;

(z) Lander & Rogers wrote a letter to Mr. Shulsinger on 19 May 2004 [annexure E] seeking information and documents relating to a superannuation fund, a proprietary company, Tattslotto agencies and various real properties associated with Mr. Yu;

(aa) Lander & Rogers wrote a letter to Mr. Shulsinger on 24 May 2004 [annexure F] seeking documents relating to a pharmacy buying group;

(bb) Mr. Shulsinger wrote a letter to Lander & Rogers on 9 June 2004 enclosing the Form 13 Financial Statement [annexure G] sworn by Mr. Yu before Mr. Shulsinger on the same date. The Financial Statement disclosed that Mr. Yu currently owned eight real properties and three pharmacy businesses. The real properties not previously disclosed were Queen Street Melbourne, Mooroolbark, Hawthorn and Southbank. The interest of Mr. Yu in the real property at Mount Waverley was not disclosed. The same three pharmacy businesses were disclosed (Heidelberg Springvale and Karingal). Any interest of Mr. Yu in the pharmacy businesses at Mount Waverley and Richmond were not disclosed;

(cc) Lander & Rogers wrote to Mr. Shulsinger on 21 July 2004 [annexure H] a follow up letter requesting documents in relation to the pharmacy buying group;

(dd) Mr. Shulsinger wrote to Lander & Rogers on 22 July 2004 [annexure I] conveying his instructions that "There are no documents in relation to our client's interest in the pharmacy buying group";

(ee) Lander & Rogers wrote to Mr. Shulsinger on 1 September 2004 [annexure K]. The letter stated that "Our client is concerned that your client's [First] Affidavit of Documents does not accurately disclose all his business interests". It then asked whether Mr. Yu had an interest in a pharmacy at The Alfred Hospital;

(ff) Lander & Rogers wrote to Mr. Shulsinger on 2 September 2004 [annexure L]. The letter referred to a pharmacy business or a real property at Scoresby, and pointed out that Mr. Yu had not disclosed an interest in the business or property in his [First] Affidavit of Documents or in his Financial Statement. The letter then asked "Could you please as a matter of urgency advise whether or not your client does hold or has ever held an interest in such Pharmacy or real estate, either personally or through any entity or partnership structure";

(gg) Mr. Shulsinger wrote to Lander & Rogers on 9 September 2004 [annexure N]. The letter set out the addresses of nine real properties acquired since 1 January 1998; the addresses of three real properties sold since 1 January 1998; and the addresses of twelve real properties currently held. The letter also set out the names and addresses of two businesses acquired since 1 January 1998; the name and address of one business sold since 1 January 1998; and the addresses of three pharmacy businesses currently held. The letter disclosed for the first time the interest of Mr. Yu in the real property at Mount Waverley. It did not disclose any interest of Mr. Yu in the pharmacy businesses at Mount Waverley and Richmond.

MR. SHULSINGER'S RESPONSE TO THE CHARGES GENERALLY:

1. Counsel for Mr. Shulsinger referred to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 @ 362, where the following passage appears in the judgment of Dixon J:

"... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. ... The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

1. Counsel for Mr. Shulsinger also referred to the constraints placed upon Mr. Shulsinger by his obligation to maintain the legal professional privilege to which Mr. Yu is entitled. Counsel referred to the following passage in the judgment of Lord Bingham in Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 @ [23]:

"The court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so. This reflects the old rule, ... that a party should not be condemned without an adequate opportunity to be heard. ... the court should not make an order unless, proceeding with extreme care, it is (a) satisfied that there is nothing the practitioner could say, if unconstrained, to resist the order and (b) that it is in all the circumstances fair to make the order."

1. Counsel for Mr. Shulsinger also referred to Utsa Pty Ltd v Ultra Tune Australia Pty Ltd [2004] VSC 105, where some of the defendants made a claim for costs against the solicitors for the plaintiffs, Minter Ellison. At [97], Habersberger J stated that "Because legal professional privilege has not been waived by the plaintiffs I do not consider it fair to [make a finding] without giving Minter Ellison the benefit of the doubt in the absence of hearing a full explanation".
2. In similar vein, counsel for Mr. Shulsinger referred to the decision of the Legal Profession Tribunal in Mr. H. v Simon Parsons & Co [2001] VLPT 5. In that case the Tribunal found that it could not hear and determine a compensation claim made by a client against a legal practitioner, because the claim concerned a hearing before the Mental Health Review Board and the legal practitioner was prevented by the Mental Health Act 1986 from giving evidence about the hearing.
3. Counsel for Mr. Shulsinger submitted that the need for the Tribunal to exercise caution in making findings, expressed in different contexts in Briginshaw and Medcalf v Mardell, is pertinent in the present case because of Mr. Shulsinger's obligation to maintain legal professional privilege.
4. It was submitted that the obligation prevented Mr. Shulsinger from giving any evidence in response to the charges. This included evidence of any enquiries that Mr. Shulsinger might have made of Mr. Yu, or of Mr. Yu's accountant, or of Mr. Yu's counsel. It also included any evidence that Mr. Shulsinger might be able to give to explain the functions of the pharmacy buying group, or the nature of Mr. Yu's interest in the pharmacy buying group.
5. Finally, it was submitted that any failure to comply with an obligation to disclose documents in the First Affidavit, particularly documents relating to properties previously listed in the Form 13 Financial Statement, amounted to "innocent errors" or "legal error" on the part of Mr. Shulsinger, not gross negligence.
6. Bearing these considerations in mind, the Tribunal will deal separately with Mr. Shulsinger's response to each charge.

1. The thrust of Charge 1 is that Mr. Shulsinger acted in gross neglect of his duty as an officer of the Court by not including in the First Affidavit documents relating to Mooroolbark, Mount Waverley, Rowville, Queen Street Melbourne and Richmond, in relation to which he had acted for Mr. Yu in the past.
2. As to the real property at Shop 9, 77 Brice Street Mooroolbark, it was contended that the property was sold before the First Affidavit was sworn on 31 August 2004. That probably was the case. In the letter from Mr. Shulsinger to Lander & Rogers dated 9 September 2004 [annexure N] the property was listed by Mr. Shulsinger as having been sold.
3. It was further contended that Mr. Shulsinger did not act in relation to the sale. Again, that probably was the case. When listing the names and addresses of solicitors or conveyancers who acted for Mr. Yu in the acquisition or disposal of real properties or businesses during the last five years, Mr. Shulsinger stated in the last paragraph of his letter of 9 September 2004 [annexure N] that he was seeking the name and address of the solicitor or conveyancer who acted in relation to the sale of Shop 9, 77 Brice Street Mooroolbark. The paragraph causes the Tribunal to draw an inference that Mr. Shulsinger did not act for Mr. Yu in relation to the sale.
4. Counsel for Mr. Shulsinger submitted that Mr. Yu was not obliged to include documents in the First Affidavit relating to any property that had been sold, because the order made by the Family Court on 28 July 2004 [annexure II] did not by its terms require disclosure of documents relating to properties that had been sold. The Tribunal accepts that the order of 28 July 2004 did not refer, in unequivocal terms, to properties that had been sold.
5. Counsel for Mr. Shulsinger also made a similar submission, namely that the same order made by the Family Court on 28 July 2004 [annexure II] only required the disclosure of documents relating to the entities listed in the order. Reliance was placed upon paragraph 2 of the order, which reads as follows:

"That within 21 days the Husband make file and serve an Affidavit of Documents referring to all relevant documents in his power possession or control including but not limited to documents of:

(a) to (e) [not relevant to the present proceedings]

(f) Any other discretionary trust, unit trust, service company or private company in which he has a legal or beneficial interest ("the entities")

together with documents relating to any real property or business interests owned by him or the entities in which he or the entities have a legal or beneficial interest [emphasis in italics added by the Tribunal]."

1. Apart from "Court documents and correspondence common between the parties", and documents in respect of which legal professional privilege was claimed, the First Affidavit disclosed only documents that were related to the entities referred to in paragraph 2(a), (c), (d) and (e) of the order made on 28 July 2004.
2. The Tribunal does not accept that the documents required to be disclosed by the order were limited to documents concerning the entities referred to in the order. The words in paragraph 2 of the order, set out by the Tribunal in italics, indicate otherwise.
3. As to the purchase of the real property and pharmacy business at Mount Waverley in 2003, and the sale of the same pharmacy business in 2004, it was submitted that there is no evidence to establish that Mr. Yu acquired an interest in the pharmacy business. The documents extracted from the file concerning Mount Waverley [exhibit A2] provide some support for the submission. On 20 January 2003, Mr. Shulsinger sent a Contract of Sale of Business relating to the purchase of Mount Waverley to Mr. Yu for signature. However, on 24 January 2003 Mr. Shulsinger sent to the solicitor for the vendor for exchange a "Contract of Sale of Business in the name of alternate pharmacist in Henry's Yu's group, Hean Yee Goh".
4. On the other hand, when the pharmacy business was sold in 2004, Mr. Shulsinger sent a tax invoice to Mr. Yu. The tax invoice is dated 2 August 2004 and refers to "our professional costs in connection with Sale of Business, including preparation of contract, transfer of lease, execution, and all necessary attendances and correspondence" and to "our professional costs in connection with security documents, including perusal, arranging execution & witnessing, including all necessary attendances and correspondence".
5. The documents extracted from the file concerning financial arrangements made with Faulding in 2003 [exhibit A3] also include documents relating to the pharmacy business at Mount Waverley. Details of the relevant documents are set out in these reasons under the heading "Proof of Charge 1" at (d), where the Tribunal concluded that a combination of the extracted documents in exhibit A2 relating to the pharmacy business at Mount Waverley, and the security documents being the first, second and third extracted documents in exhibit A3 insofar as they relate to the pharmacy business at Mount Waverley, standing alone would establish that Mr. Yu had a financial interest in the pharmacy business at Mount Waverley. Despite the submission made by counsel for Mr. Shulsinger, the Tribunal continues to be satisfied as to its conclusion.
6. As to the pharmacy business at Rowville, the fourth and fifth documents extracted from exhibit A3 standing alone would establish that the business was sold in 2003. Counsel for Mr. Shulsinger again submitted that the order made by the Family Court on 28 July 2004 [annexure II] did not require the disclosure of documents relating to businesses that had been sold. As with Mooroolbark, the Tribunal accepts that the order of 28 July 2004 did not refer, in unequivocal terms, to businesses that had been sold.
7. Counsel also again submitted that the order of 28 July 2004 only required the disclosure of documents relating to the entities listed in the order. Again like Mooroolbark, the Tribunal rejects the submission because the words in paragraph 2 of the order, set out by the Tribunal in italics, indicate otherwise.
8. As with Mount Waverley, counsel for Mr. Shulsinger submitted that there is no evidence to establish that Mr. Yu had an interest in the pharmacy business at Rowville, with the result that there were no documents relating to Rowville that Mr. Yu was obliged to disclose.
9. This submission requires re-examination of the documents extracted from the file concerning financial arrangements with Faulding in 2003 [exhibit A3], as those arrangements related to the pharmacy businesses at both Rowville and Mount Waverley. These are the documents set out in detail under the heading "Proof of Charge 1" at (d), where the Tribunal concluded that the five extracted documents in exhibit A3 relating to the pharmacy business at Rowville, in combination, would establish in the absence of evidence to the contrary that Mr. Yu had a financial interest in the pharmacy business at Rowville. Despite the submission made by counsel for Mr. Shulsinger, the Tribunal continues to be satisfied as to its conclusion.
10. As to the purchase of the real property in Queen Street Melbourne in 2003, counsel for Mr. Shulsinger submitted that Mr. Yu was not obliged to include documents relating to the purchase in the First Affidavit for two reasons.
11. The first reason was that Mr. Yu had disclosed an interest in Queen Street in the Form 13 Financial Statement [annexure G] sworn by him on 9 June 2004, and that the order made by the Family Court on 28 July 2004 [annexure II] did not by its terms require disclosure of documents relating to properties listed in the Financial Statement.
12. The second reason was similar to the first, namely that the same order made by the Family Court on 28 July 2004 [annexure II] only required the disclosure of documents relating to the entities listed in the order.
13. Both these submissions are rejected, again because the words set out in italics in paragraph 2 of the order indicate otherwise.
14. As to the purchase of the pharmacy business at Richmond in 2003-2004, counsel for Mr. Shulsinger submitted that there is no evidence to establish that Mr. Yu had an interest in the business, with the result that Mr. Yu was not obliged to disclose documents relating to Richmond.
15. This submission requires re-examination of the documents extracted from the file concerning the purchase of Richmond [exhibit A5]. These documents are set out in detail in these reasons under the heading "Proof of Charge 1" at (f), where the Tribunal concluded that, standing alone, the documents would establish in the absence of evidence to the contrary that Mr. Shulsinger acted for Mr. Yu in relation to the purchase of a pharmacy business at Richmond, to be purchased in the name of his nominee Doris Do and guaranteed by Mr. Yu if necessary; and that Mr. Yu had a financial interest in the business. Despite the submission made by counsel for Mr. Shulsinger, the Tribunal continues to be satisfied as to its conclusion.

1. The thrust of Charge 2 is that Mr. Shulsinger acted in gross neglect of his duty as an officer of the Court in relation to the Second Affidavit in that he did not disclose any document concerning the purchase of Richmond, in relation to which Mr. Shulsinger had acted for Mr. Yu.
2. The First Affidavit [annexure J] had been sworn by Mr. Yu on 31 August 2004.
3. Two days later, on 2 September 2004, an order was made by the Family Court [annexure M]. The order required Mr. Yu, among other things, to provide particulars of any business acquired by Mr. Yu after 1 January 1998, or currently held. By letter to Lander & Rogers dated 9 September 2004 [annexure N], Mr. Shulsinger purported to comply with the order. The letter did not include the pharmacy business at Richmond as a business acquired by Mr. Yu after 1 January 1998, or currently held.
4. A further order was made by the Family Court on 15 September 2004 [annexure OO]. The order required Mr. Yu to make an Affidavit of Documents which was "to include all relevant documents in the Husband's possession, power and control in relation to the acquisition and sale of the real properties and businesses referred to in the letter from [Mr. Shulsinger] to Lander & Rogers Lawyers of 9 September 2004" [emphasis in italics added by the Tribunal].
5. Counsel for Mr. Shulsinger submitted that the only documents required by the order to be incorporated in the Affidavit of Documents were documents relating to the properties or businesses referred to in Mr. Shulsinger's letter of 9 September 2004. The letter did not refer to Mr. Yu having an interest in Richmond.
6. The submission is rejected because the word 'include', as it appears in the order, indicates otherwise. On the other hand, it is possible that Mr. Shulsinger, through lack of care in reading the order of 15 September 2004, failed to appreciate the extent of disclosure required by the order.

1. The thrust of Charge 3 is that Mr. Shulsinger did not take sufficient care to ensure that information conveyed by him to Lander & Rogers in correspondence was accurate and complete and not likely to mislead.
2. Counsel for Mr. Shulsinger submitted that there is no evidence to establish that Mr. Yu had an interest in the pharmacy businesses at Mount Waverley and Richmond, which were not referred to in the correspondence. For reasons already given, the Tribunal is satisfied that Mr. Yu had interests in the pharmacy businesses at Mount Waverley and Richmond.
3. Counsel for Mr. Shulsinger also pointed out that the Commissioner did not provide particulars of the failure to take sufficient care, alleged in Charge 3. It was submitted that no duty of care was breached.
4. A legal practitioner probably has an obligation at common law not to mislead an opponent, through lack of care. However, in the present proceedings Mr. Shulsinger was under a statutory obligation to provide full and frank disclosure of information to Ms Liu, because of rule 1.08(2) of the Family Law Rules 2004.
5. In any case, the charge is that the conduct of Mr. Shulsinger fell short of "the standard of competence and diligence that a member of the public [including Ms Liu] is entitled to expect of a reasonably competent Australian legal practitioner".

1. In making its findings, the Tribunal has taken into account the principles enunciated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
2. The Tribunal also has taken into account the fact that Mr. Shulsinger would be constrained in giving evidence by the fact that he is obliged to preserve the legal professional privilege to which Mr. Yu is entitled.

1. Mr. Shulsinger acted for Mr. Yu in relation to the purchase of real property at Shop 9, 77 Brice Avenue Mooroolbark in 2000; the purchase of real property and a pharmacy business at Mount Waverley in 2003, and the sale of the same pharmacy business in 2004; financial arrangements with Faulding relating to the pharmacy businesses at Rowville and Mount Waverley in 2003, and the sale of the pharmacy business at Rowville in 2003; the purchase of real property in Queen Street Melbourne in 2003; and the purchase of a pharmacy business at Richmond in 2003-2004 ("the transactions").
2. Mr. Yu had a financial interest in all of the real properties and pharmacy businesses referred to in the previous finding.
3. The real property at Shop 9, 77 Brice Avenue Mooroolbark was sold, but the evidence does not enable the Tribunal to find when the property was sold. Mr. Shulsinger did not act for Mr. Yu in relation to the sale.
4. The pharmacy business at Mount Waverley was sold by early August 2004, prior to the First Affidavit being sworn by Mr. Yu on 31 August 2004.
5. The pharmacy business at Rowville was sold by 12 May 2003, prior to the First Affidavit being sworn by Mr. Yu on 31 August 2004.
6. Mr. Shulsinger acted for Mr. Yu in a family law proceeding conducted in the Family Court in 2004.
7. As an officer of the Court acting for Mr. Yu in the family law proceeding, Mr. Shulsinger owed the six duties to the Court outlined in the section of these reasons headed "Breach of duty".
8. Mr. Shulsinger should have been aware because he acted for Mr. Yu in relation to the transactions, or should have become aware by complying with his duties as an officer of the Court, that documents would be in the possession, power or control of Mr. Yu, or in his own possession, being documents that Mr. Yu was required to disclose in the First Affidavit.
9. The order made by the Family Court on 28 July 2004, which required Mr. Yu to make file and serve an Affidavit of Documents, required inclusion in the affidavit of documents relating to the entities referred to in the order. It also required the inclusion of all documents relating to properties and businesses in which Mr. Yu had an interest, including those set out in the Form 13 Financial Statement. The order was not as clear as it could have been as to whether Mr. Yu was required to include documents relating to properties and businesses that had been sold.
10. Mr. Shulsinger neglected his duty as an officer of the Court by failing to include in the First Affidavit documents relating to the real property at Shop 9, 77 Brice Avenue Mooroolbark and the pharmacy businesses at Mount Waverley and Rowville, all of which probably had been sold prior to the making of the First Affidavit, but his neglect did not amount to gross neglect.
11. Mr. Shulsinger acted in gross neglect of his duty as an officer of the Court in failing to include in the First Affidavit documents relating to the real property at Mount Waverley, the real property at Queen Street Melbourne, and the pharmacy business at Richmond. This finding is based upon the fact that Mr. Shulsinger acted for Mr. Yu in relation to their acquisition, and the fact that Mr. Shulsinger owed duties to the Court. In making this finding, the Tribunal has borne in mind the constraints that would have been placed upon Mr. Shulsinger if he had given evidence.
12. Bearing in mind the constraints that would have been placed upon Mr. Shulsinger if he had given evidence, no finding is made as to whether Mr. Shulsinger acted with gross neglect in failing to include in the First Affidavit documents relating to a property or business not referred to in the previous finding.
13. Mr. Shulsinger's gross neglect would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency.
14. Mr. Shulsinger is guilty of misconduct at common law in relation to the First Affidavit (Charge 1).

1. The order made by the Family Court on 15 September 2004, which required Mr. Yu to make file and serve an Affidavit of Documents, did not limit the disclosure of documents to documents concerning the acquisition and sale of the real properties and businesses referred to in the letter from Mr. Shulsinger to Lander & Rogers dated 9 September 2004.
2. In preparing the Second Affidavit, Mr. Shulsinger owed the six duties to the Court outlined in the section of these reasons headed "Breach of duty".
3. The Second Affidavit prepared by Mr. Shulsinger did not disclose documents relating to the pharmacy business at Richmond, in which Mr. Yu had an interest.
4. Mr. Shulsinger should have been aware because he acted for Mr. Yu in relation to the purchase of the pharmacy business at Richmond, or should have become aware by complying with his duties as an officer of the Court, that documents relating to the pharmacy business at Richmond would be in the possession, power or control of Mr. Yu, or in his own possession, and that Mr. Yu was required to disclose the documents in the Second Affidavit.
5. Mr. Shulsinger neglected his duty as an officer of the Court by failing to include in the Second Affidavit documents relating to the pharmacy business at Richmond. but his neglect did not amount to gross neglect as through lack of care Mr. Shulsinger may have failed to appreciate the extent of disclosure required by the order of 15 September 2004.
6. Mr. Shulsinger is not guilty of misconduct at common law in relation to the Second Affidavit. However, the Tribunal is satisfied that Mr. Shulsinger is guilty of unsatisfactory professional conduct or alternatively unsatisfactory conduct in relation to the Second Affidavit (Charge 2): see s.4.4.20 of the Legal Profession Act 2004 and s.161 of the Legal Practice Act 1996 as to the making of alternative findings of unsatisfactory professional conduct or unsatisfactory conduct respectively.

1. In preparing the correspondence the subject matter of the charge, Mr. Shulsinger was under an obligation to "give full and frank disclosure of all information relevant to the case, in a timely manner": rules 1.08(2) & 13.01(1) of the Family Law Rules 2004.
2. Independently of his obligations under the Family Law Rules, it should have been apparent to Mr. Shulsinger, both from correspondence emanating from Lander & Rogers and from the affidavit sworn by its client Ms Liu on 26 March 2004, that Ms Liu was not fully aware of investments made by Mr. Yu, particularly investments made after Mr. Yu and Ms Liu separated, and that Ms Liu required full and frank disclosure by Mr. Yu.
3. Mr. Shulsinger acted for Mr. Yu in relation to the purchase of the real property at Mount Waverley, but Mr. Shulsinger did not disclose to Ms Liu in a timely manner the interest of Mr. Yu in the property [it was ultimately disclosed in the Form 13 Financial Statement].
4. Mr. Shulsinger acted for Mr. Yu in relation to the purchase of the pharmacy businesses at Mount Waverley and Richmond, but Mr. Shulsinger did not disclose to Ms Liu the interests of Mr. Yu in those businesses.
5. In failing to disclose in a timely manner the interests referred to in the previous two findings, the conduct of Mr. Shulsinger was liable to mislead Lander & Rogers and its client Ms Liu as to the true position, and fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
6. Bearing in mind the constraints that would have been placed upon Mr. Shulsinger if he had given evidence, no finding is made as to whether Mr. Shulsinger failed to give full and frank disclosure in a timely manner in respect of any other real property or business.
7. Mr. Shulsinger is guilty of unsatisfactory professional conduct or alternatively unsatisfactory conduct in relation to the correspondence (Charge 3).

1. The Tribunal will appoint a date for the resumption of this hearing, to hear submissions as to the orders to be made as a consequence of these findings.