ASIC wants access to AMP-Clayton documents

The regulator wants a court to force AMP to hand over documents related to its fee-for-no-service scandal.

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 & Investments Commission wants the Federal Court to rule that the documents, records of interviews conducted with 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.

A spokeswoman for Clayton Utz, which is also a target of ASIC’s lawsuit, said the law firm “will abide by any order made by the court”.

In April, 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.

The company’s share price has fallen 54 per cent, or $2.83, this year, closing yesterday at $2.36.

ASIC continues to investigate the fee-for-no-service scandal, which the commission heard involved hundreds of instances where AMP charged fees to financial advice customers but did not provide a service.

Since the commission hearings, AMP’s woes have deepened, with the company admitting its fee-for-no-service scandals are likely to cost it $360 million and ASIC launching Federal Court action accusing it of ripping off life insurance customers by cancelling their coverage and booking new coverage instead of transferring them to the new ­policy — a strategy that maximised commissions for financial planners.

As part of its fee-for-no-service investigation, 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.

An ASIC spokesman refused to say why the regulator argued that legal professional privilege does not apply.

However, the privilege does not apply if the client has waived it, for example by publishing or providing it. AMP waived privilege over the report itself by providing it to ASIC in October, opening the door for the regulator to claim that privilege over the supporting interviews has also been foregone.

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 … privilege”.

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

“Interviews with … 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.’’