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:

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 or at


Send us an Enquiry


I was able to see an experienced lawyer the next day without going on a waiting list.

— CF, Eimeo

View more testimonials »

Elspeth told us what our rights were and what we were entitled to, and she was spot on.

— SD & SD, Belgian Gardens

View more testimonials »

I found Elspeth to be kind and compassionate, but professional at the same time.

— KA, North Mackay

View more testimonials »

Jane's letters that she sent to others on my behalf were brilliantly written.  She always explained everything to me in down to earth terms.  Jane is very intelligent and understanding and…

— JW, Glenwood

View more testimonials »

This was our first property transaction in 48 years. Debbie always returned our phone calls straight away. She was kind to us and helped us understand what was going on and took the time to explain…

— MS & AS, Mount Pleasant

View more testimonials »

When I needed a solicitor quickly, Elspeth’s name was recommended quite a few times from family and friends. My matter was a very stressful and because I had cancer in 2008-2009 I was worried…

— Robert, Rural View

View more testimonials »

My husband and myself recently purchased a block of land at Habana and we decided to use the Team at Kelly Legal. We had the up most professionalism and the contact between us and the Kelly legal team…

— KF, Ooralea

View more testimonials »

Individual liability limited by a scheme approved under professional standards legislation