The banking royal commission revealed AMP had been unlawfully deducting service fees from customer accounts since 2009 and had misled the corporate regulator 20 times about this, including by portraying the problem as a process error rather than a deliberate decision.

ASIC says it issued a "section 33" notice in October to Clayton Utz, requiring the production of certain documents, but Clayton Utz has declined, saying they are subject to legal professional privilege by AMP.

ASIC is seeking from the Federal Court that the documents are not subject to privilege or privilege has been waived by AMP.

Privileged and confidential basis

As part of the royal commission hearing AMP has produced the draft and final reports of Clayton Utz's investigation, which are now public. But the file notes of interviews that form the basis of this report remain confidential.

In order to prepare this 2017 report, Clayton Utz interviewed 25 AMP employees, including executives and senior employees Robert Caprioli and Michael Guggenheimer, who have since left AMP, and Michael Paff.

AMP and Clayton Utz are likely to rely on the section of the report that says all interviews were voluntary. The report also says "all documents or communications that are brought into existence by Clayton Utz under this engagement will be kept confidential and marked as 'Confidential and Subject to Legal Professional Privilege' as on the front page of this report".

ASIC is likely to argue by sharing the report, AMP has waived its privilege over the file notes as well.


In a statement, a company spokeswoman said AMP had been assisting ASIC with its investigation into the fees-for-no-service matter and it was considering the application to challenge AMP's claim for legal professional privilege.

"Clayton Utz prepared a report in respect of an investigation of fees-for-no-services issues for the AMP board in 2017. AMP voluntarily shared this report with ASIC in October 2017 to assist in its investigation.

"Interviews with current and former AMP employees were conducted by Clayton Utz on a privileged and confidential basis. Accordingly, the file notes of the interviews are properly subject to a claim by AMP for legal professional privilege."

A Clayton Utz spokeswoman 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."

The case will be back in court before Justice David O'Callaghan for first case management hearing on February 8.