ASIC has applied to the Federal Court of Australia for an order compelling Clayton Utz to produce certain documents which have, to date, been withheld from ASIC.
ASIC is conducting an ongoing investigation into AMP Group for fees for no service (FFNS) conduct and related false or misleading statements to ASIC. This relates to circumstances where customers were charged ongoing service fees without having been provided the services to which they were entitled.
In October, ASIC issued a notice under section 33 of the Australian Securities and Investments Commission Act 2001 (Cth) to Clayton Utz requiring the production of certain documents. 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 is seeking from the Federal Court:
- a declaration that the documents are not subject to LPP, or alternatively, that LPP has been waived by AMP Limited
- an order requiring Clayton Utz to produce the documents to ASIC, and
- ancillary orders.
ASIC's application has been listed for a first case management hearing in the Federal Court in Melbourne on 8 February 2019.
ASIC's approach to enforcing its investigation powers
ASIC is equipped with information-gathering powers which include requiring entities (and individuals) to produce to ASIC documents ASIC considers to be relevant to an investigation. These powers are an important and necessary part of ASIC's work in investigating, and taking enforcement action in respect of, potential misconduct.
ASIC recognises that some documents it requests entities to provide may attract a valid claim of LPP. In such circumstances, ASIC 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 invalid LPP claim, or where LPP has been waived, it is open to ASIC to take court action to resolve the matter.