AMP/Clayton Utz Gate: Is this an attempted massage?

> 20 March 2019

The new tough cop in town, ASIC, no doubt still reeling after the criticism dished out by Mr Hayne in the Financial Services Royal Commission about it being massaged into doing deals with banks and insurance companies, has had a small victory in its battle against AMP and Clayton Utz.

Clayton Utz have agreed, at the last minute, to hand over notes of witness interviews conducted when Clayton Utz were preparing their “independent” report into the fees-for-no-service debacle at AMP. 

It had been widely reported back in April 2018 that AMP had waived its right to legal professional privilege. I wrote about it at the time

But it seems that either that was incorrectly reported or AMP have changed their stance, because when Clayton Utz was confronted with a notice from ASIC to produce documents, legal professional privilege was claimed.

I admitted in another article that I was confused by statements made by both AMP and Clayton Utz.

This latest episode has not eased my disquiet.

If in fact AMP waived privilege back in April, as was reported, then it is waived. They can’t turn around and “unwaive” it.

It is also the case, as I have said repeatedly, that the privilege does not apply anyway, where there is an improper purpose, or if it is used for a purpose that is contrary to the public interest.

Let’s address the elephant in the room: the premise of the ASIC investigation is that the report by Clayton Utz was not independent at all. In fact it was produced by Clayton Utz, paid by AMP, in an attempt to massage ASIC into leaving AMP alone.

The notes of interviews are a start but, again, all of the files and documents held by Clayton Utz need to be obtained to give a total picture.  

This could be an interesting fight.

Clayton Utz are well versed in the nuances of legal professional privilege. This is evident from their website which is filled with articles written on the topic. They were also the key player in the infamous “document retention policy” that came to light in connection with litigation against tobacco companies. Some light reading on that here:

http://www.abc.net.au/worldtoday/content/2006/s1816558.htm

https://www.smh.com.au/national/end-to-a-10-year-wrestle-with-smoke-20110401-1crqa.html

On the other hand, ASIC are giving every indication that, stung by Hayne’s criticism, they are prepared to fight hard on this and other issues.

There is also a clear public interest in ASIC pursuing the truth in this case... and avoiding a massage. 

If there has been improper behaviour in connection with this report, (which of course has not been decided yet) then it needs to be exposed and dealt with appropriately.  It would be just another example of the big end of town screwing over the little person and, not to let ASIC off the hook, the government merely spectating as it occurred. 

Sean Kelly is a Director at Kelly Legal and can be contacted on sean.kelly@kellylegal.com.au or at www.kellylegal.com.au

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