Corporate watchdog launches legal action in bid to gain access to Clayton Utz documents from AMP

ASIC has launched a legal bid to force AMP to provide Clayton Utz documents related to its fee-for-no-service scandal.

The AMP building in Sydney. Hollie Adams/The Australian

The corporate regulator has launched legal action in a bid to force embattled financial services group AMP to hand over documents related to the company’s fee-for-no-service scandal that the company claims are covered by legal professional privilege.

The Australian Securities and Investments Commission wants the Federal Court to rule that the documents, records of interviews conducted with AMP (AMP) staff by law firm Clayton Utz, either aren’t covered by privilege or that the company has waived the privilege.

An AMP spokeswoman said Clayton Utz spoke to its staff members in preparation for a report to the board about the scandal delivered last year.

Earlier this year, the banking royal commission heard evidence the report was changed following discussions with AMP executives including its then-chairman, Catherine Brenner, to clarify the involvement of then-chief executive Craig Meller in the fees-for-no-service scandal.

AMP executive Jack Regan also admitted to the commission that the company misled ASIC about the scandal 20 times.

Amid a plunging AMP share price, Ms Brenner, Mr Meller and chief legal counsel Brian Salter left the company, with Mr Regan following suit earlier this month.

As part of its ongoing investigation into the fee for no service scandal, ASIC demanded AMP hand over the staff interviews using its compulsory information gathering powers.

But AMP refused, saying they were covered by legal professional privilege, which is designed to protect from the prying eyes of regulators and the courts documents that contain legal advice or communications from lawyers that are prepared for an actual or feared court case.

However, the privilege does not apply if the client has waived it, for example by publishing it, or if the communications were made for the purpose of facilitating illegal or improper behaviour.

In a brief application filed with the court last week, ASIC seeks a declaration that the AMP interviews “are not subject to legal professional privilege of the First Defendant [AMP], or alternatively, that the First Defendant has waived legal professional privilege”.

However, it did not state the grounds on which it claimed privilege did not exist.

AMP’s spokeswoman said it gave the Clayton Utz report to ASIC in October last year.

“Interviews with current and former AMP employees were conducted by Clayton Utz on a privileged and confidential basis,” she said.

“Accordingly, the file notes of the interviews are properly subject to a claim by AMP for legal professional privilege.

“ASIC is challenging that privilege claim, and has filed proceeding in the Federal Court seeking inspection of the file notes.

“AMP is considering ASIC’s application, which comes before the court for initial directions in February.”