On 17 December 2018, the Australian Securities & Investments Commission (“ASIC”) announced that it has applied to the Federal Court of Australia for an order compelling Clayton Utz to produce documents as part of ongoing investigations into the AMP’s fees for no service conduct.
During the second round of public hearings in the Banking Royal Commission, it was revealed that AMP had engaged in misconduct by charging and obtaining fees for no services from its customers and misled ASIC on at least 20 occasions about this misconduct.
AMP had engaged Clayton Utz in June 2017 to investigate any misconduct in relation to charging fees for no service. AMP subsequently presented Clayton Utz’s report (“Report”) arising out of this investigation to ASIC as an independent report which downplayed the knowledge and responsibility of AMP’s senior executives in the misconduct. However, Clayton Utz’s independence came under high scrutiny in the Banking Royal Commission when it was revealed that it had provided 25 drafts of the report to AMP and contents of the Report were subject to extensive email exchanges between AMP and Clayton Utz prior to the finalization of the Report.
Despite these findings, AMP and Clayton Utz have stood by their assertions that the Report was independently made, stating that it was an “uncompromisingly direct 87-page review” of AMP’s fee for no services practice.
Shortly after, ASIC issued a statement confirming that it will continue investigating AMP in relation to its fees for no service conduct and related false or misleading statements made to ASIC.
As part of these investigations, ASIC issued a notice under section 33 of the Australian Securities and Investments Commission Act 2001 (Cth) to Clayton Utz in October 2018 which required Clayton Utz to produce documents which form the basis of the Report. The documents sought by ASIC include file notes of interviews between 25 AMP employees and Clayton Utz lawyers. However, Clayton Utz has declined to produce these documents citing a claim of legal professional privilege by AMP.
Consequently, ASIC has applied to the Federal Court for an order compelling the production of these documents. In particular, ASIC is seeking three main orders from the Federal Court:
- a declaration that the documents are not subject to legal professional privilege, or alternatively, that such privilege has been waived by AMP;
- an order requiring Clayton Utz to produce the documents to ASIC; and
- ancillary orders.
Meanwhile, in a statement responding to ASIC’s actions, AMP maintains that the documents remain protected by privilege.
The case will be heard by Justice O’Callaghan of the Federal Court on 8 February 2019.
Cowell Clarke will be closely following the case and other updates from the Banking Royal Commission. Please contact Hillary Ray if you have any questions.