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19-052MR AMP and Clayton Utz surrender in ASIC court battle over failure to produce documents
Clayton Utz has provided ASIC with its internal file notes from the firm’s interviews with current and former employees and officers of AMP, who were interviewed by Clayton Utz in connection with its report to AMP in October 2017 regarding fees for no service. The Clayton Utz report was considered in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry in April 2018.
ASIC commenced Federal Court proceedings against AMP and Clayton Utz in December 2018 (18-379MR), seeking an order compelling Clayton Utz to produce the interview notes. The interview notes had been withheld from ASIC by AMP, who claimed that they were subject to legal professional privilege (LPP). ASIC disputed the claim of LPP.
The interview notes were responsive to a compulsory notice to produce issued by ASIC under s 33 of the 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.
On 7 March 2019, the day AMP and Clayton Utz were due to file their evidence in the proceedings, Clayton Utz produced the documents sought by ASIC with no claim of LPP by AMP. AMP agreed to pay ASIC’s costs and the proceedings were dismissed by consent on 8 March 2019.
‘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,’ concluded Mr Crennan.
ASIC has compulsory information-gathering powers which require entities (and individuals) to produce 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 produce may attract a valid claim to 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 inappropriate LPP claim, ASIC will take court action to resolve the matter.