In a statement, the Australian Securities and Investments Commission said it is conducting an ongoing investigation into AMP Group for its ‘fees for no service’ (FFNS) conduct and related false or misleading statements to ASIC, which the regulator said relates to circumstances where customers were charged ongoing service fees without having been provided the services to which they were entitled.
In October of this year, ASIC issued a notice under s33 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 said.
As such, the regulator 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, as well as ancillary orders.
The federal regulator is equipped with “information-gathering powers which include requiring entities (and individuals) to produce documents ASIC considers to be relevant” to an investigation, it noted.
In circumstances where requested documents may attract a valid claim of LPP, ASIC said it expects those entities 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,” it said.
ASIC’s application has been listed for a first case management hearing in the Federal Court in Melbourne on 8 February 2019.
ADDENDUM: Following publication of this story, Lawyers Weekly received comments from Clayton Utz responding to ASIC's statment:
The firm 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."