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Clayton Utz, AMP ‘surrender’ in battle over production of documents: ASIC
Internal file notes from BigLaw firm Clayton Utz’s interviews with current and former employees and officers of AMP have now been provided to the Australian Securities and Investments Commission.
Jerome Doraisamy
In a statement, ASIC said that those internal file notes – regarding interviews conducted by Clayton Utz in connection with its October 2017 report regarding ‘fees for no service’, which was considered in last year’s banking royal commission – had now been produced, but that it is “disappointed” the matter was not resolved sooner.
“The interview notes were responsive to a compulsory notice to produce issued by ASIC under section 33 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) in October 2018 and relate to ASIC’s ongoing investigation into AMP Group for fees for no service conduct and related false or misleading statements to ASIC,” the regulator said.
“Clayton Utz has declined to produce these documents on the basis that they are subject to a claim of legal professional privilege (LPP) by AMP Limited,” ASIC had said in a statement in mid-December.
At that time, Clayton Utz said: “ASIC has filed an application seeking the production of documents over which AMP claims privilege. Clayton Utz will abide by any order made by the court.”
However, last Thursday, Clayton Utz produced the documents sought by the regulator with no claim of legal professional privilege by AMP, with the bank agreeing to pay ASIC’s costs. The proceedings were dismissed by consent the following day.
In a statement, ASIC said it recognises that some documents it requests entities to produce may attract a valid claim to legal professional privilege. In such circumstances, the regulator said, it expects entities “to provide appropriate details to substantiate the basis of any LPP claim”. Where ASIC considers that a document has been withheld from production on the basis of an inappropriate LPP claim, it continued, ASIC will take court action to resolve the matter.
“ASIC is determined to take enforcement action against the major banks and financial service providers and to use all legal powers necessary to investigate the significant issue of fees for no service,” ASIC deputy chair Daniel Crennan QC said.
“Entities should take seriously their obligations under statutory notices issued by ASIC, including producing documents in accordance with the specified timeframe and not preventing the disclosure of documents to ASIC by making inappropriate LPP claims. These interruptions delay and frustrate ASIC’s proper investigation.”
“ASIC is pleased that the documents have now been produced but is disappointed that the matter was not resolved sooner,” Mr Crennan concluded.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly and HR Leader. He has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. In June 2024, he also assumed the editorship of HR Leader. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
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