WESTPAC NEW ZEALAND LIMITED v ANDERSON [2019] NZHC 979

WESTPAC NEW ZEALAND LIMITED v ANDERSON [2019] NZHC 979 [7 May 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-000373[2019] NZHC 979BETWEEN WESTPAC NEW ZEALAND LIMITEDPlaintiffAND PATRICIA KARENIA ANDERSONDefendantHearing: 15 April 2019Appearances: B Stewart QC, J Goodall and R Smedley for PlaintiffG M Brodie, S M Grieve and A N Riches for DefendantJudgment: 7 May 2019Reissued: 17 October 2019JUDGMENT OF VENNING JThis judgment was delivered by me on 7 May 2019 at 3.30 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Anthony Harper, ChristchurchSaunders & Co, ChristchurchCounsel: R B Stewart QC/J K Goodall, AucklandG M Brodie/S M Grieve, ChristchurchCopy to: DefendantIntroduction[1] In the mid-2000s Patricia Anderson and her husband Ken Anderson weredirectors and shareholders in companies within the Lane Walker Rudkin Industries(LWRI) Group. The companies failed and were placed in receivership in April 2009.[2] Following an investigation into the failure by the Serious Fraud Office Mr andMrs Anderson were both prosecuted. Mr Anderson was convicted on several countsand sentenced to imprisonment for six years. [REDACTED].[3] The receivers appointed to LWRI had, in the meantime, brought a civilproceeding against Mr and Mrs Anderson. Mrs Anderson settled that claim at amediation on 7 February 2014.[4] Westpac New Zealand Limited (Westpac) issued these proceedings on 18 May2016. Westpac alleges deceit and conspiracy to defraud by Mrs Anderson in relationto the use of a Letter of Credit (LOC) facility by LWRI between 2005 and 2007.[5] Mrs Anderson applied to have a preliminary question determined. There hasbeen some debate between the parties as to the scope of the question to be determined.The preliminary question is:Whether Westpac is precluded from pursuing its claims in these proceedingson the basis:(a) the previous proceedings gave rise to an issue estoppel, or(b) these proceedings are an abuse of process.Background[6] Until June 2006 Mrs Anderson was, together with her then husband KenAnderson, a director of LWRI, a holding company which held shares of operationalsubsidiaries within the Lane Walker Rudkin Group. LWRI was a hundred per centowned by Stirling Corporation Ltd (Stirling). Mr and Mrs Anderson wereshareholders and directors of Stirling.[7] Mr and Mrs Anderson were also directors of Florian Leather Goods Ltd(Florian) a company owned by Stirling and operated by Mrs Anderson. Florianimported, manufactured, wholesaled, and retailed leather goods, hosiery andunderwear, sports apparel, jewellery, scarves and accessories.[8] Mr and Mrs Anderson separated in May 2005. Following the completion of arelationship property agreement in June 2006 Mr Anderson became the soleshareholder in Stirling and Mrs Anderson became the sole shareholder in Florian.[9] At all material times Westpac provided LWRI and LWR Properties Ltd withbanking facilities. The facilities were supported by guarantees from Mr and MrsAnderson. Following the settlement of relationship property issues Westpac releasedMrs Anderson from her guarantees in July 2006.The LOC facilities[10] Florian had a trade finance facility with the Bank of New Zealand (BNZ). Thefacility was secured against the assets of Florian and was personally guaranteed byMrs Anderson. Between 22 December 2005 and 14 September 2007 two LWRIsubsidiaries – LWR Manufacturing Ltd and LWR Sports Ltd – applied for eight LOCsin favour of Florian to be issued by Westpac. In the case of each LOC, on receipt ofan order from a LWRI subsidiary Florian issued an invoice addressed to the LWRIsubsidiary which then applied for the LOC.[11] When each LOC was issued, LWR Manufacturing Ltd on behalf of Florianpresented to the BNZ documents called for under the LOC along with the TradeFinance Facility drawing request signed by Mr and Mrs Anderson. The bank acceptedthe LOC as security with recourse and advanced the face value thereof to Florian.[12] Florian then advanced the corresponding sum of money to LWRI or asubsidiary of LWRI. The money was then used by the subsidiaries in the ordinarycourse of their business, which business included purchasing finished goods in theform of clothing from within New Zealand and from overseas.[13] In each case Westpac paid the face value of the LOC to the BNZ on the duedate for payment having simultaneously drawn that sum from the LWRI's subsidiariesbank accounts.[14] Westpac alleges that Mrs Anderson acted dishonestly in relation to the LOCs.Despite the invoices it had issued, Florian did not sell any stock to the LWRIsubsidiaries. The invoices were for fictitious stock and were created to enable thefunds to be drawn down.The SFO prosecution[15] The SFO laid [REDACTED] counts of fraud under s 228(b) of the Crimes Act1961 against Mrs Anderson in relation to the use of the LOC facility.[16] Each count alleged that Mrs Anderson, together with Ken Anderson, withintent to obtain a pecuniary advantage dishonestly and without claim of right used orattempted to use one or more documents supplied to BNZ and Westpac for the purposeof obtaining funds from Westpac under the LWRI documentary credit facility.[17] The trial took place over four days during which Crown witnesses gave theirevidence-in-chief and were cross-examined. During the afternoon of the fourth dayand while David Sugden, the employed accountant for LWR Manufacturing Ltd wasbeing cross-examined, the trial was adjourned to allow the prosecution and defence toengage in discussions.[18] When the parties returned to Court the following day, counsel for MrsAnderson, Mr Davis, advised the Judge that the parties had come to a sensibleresolution of the matters before the Court. [REDACTED].[19] The Crown offered no further evidence on the remaining seven counts. MrsAnderson was discharged under s 347 of the Crimes Act 1961 in relation to them.[REDACTED].Westpac's case[20] Westpac relies on the fraud and dishonesty causes of action to extend the usualsix-year limitation period for discoverability. Westpac says that it could notreasonably have discovered the fraudulent use of the LOC facility until May 2010when Mr Sugden was interviewed by the receivers' staff.Mrs Anderson's submissions[21] Mrs Anderson argues that the issue of whether she was guilty of fraud ordishonesty in relation to the LOCs has already been determined by the District Court.She says that the matters Westpac will be required to prove to make out its civil claimare the same as the prosecution was required to prove in the criminal case. She wasdischarged in relation to seven counts. The discharges are deemed to be acquittals.While Ms Grieve accepted there will usually be no issue estoppel where the civilproceeding follows a criminal prosecution because of the different standards of proof,the position is different where the allegations relate to fraud or dishonesty.[22] In the alternative, Mrs Anderson submitted that if an issue estoppel did notapply, the Westpac proceedings were an abuse of process.[23] Ms Grieve acknowledged certain difficulties with the issue estoppel argumentbut submitted that it did not matter how the matter was categorised. She referred tothe following passage from the decision of Somers J in Gregoriadis v Commissionerof Inland Revenue:1I am satisfied it would not be right to permit the Commissioner to seek toestablish in proceedings in the High Court that the appellant wilfully madefalse returns of income when another Court has already finally determined thatissue against him. Whether that be described as issue estoppel or theapplication of public policy in respect of an abuse of process may not beimportant. The aim in each case is finality of litigation and fair use of curialprocedures.[24] Ms Grieve also referred to the case of New Zealand Social Credit PoliticalLeague Inc v O'Brien.2 In that case the Court of Appeal noted that the inherent1 Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110 (CA) at 118.2 New Zealand Social Credit Political League Inc v O'Brien [1984] 1 NZLR 84 (CA).jurisdiction to strike out a statement of claim as an abuse of process is one which theCourt may come under a duty to exercise.3 She noted that this was the third time MrsAnderson had been required to respond to allegations of fraud arising from the use ofthe LOCs.Discussion[25] Mrs Anderson's argument that Westpac is estopped from pursuing theseproceedings relies on the principle of res judicata. Res judicata applies where a finaljudicial decision has been pronounced by a New Zealand Court on a matter the subjectof the litigation. Any party or privy to the litigation is estopped, in subsequentlitigation, from disputing or questioning the merits of the decision on the subjectmatter as against any other party or privy.4 The justifications for the rule are wellknown. As Lord Blackburn stated in Lockyer v Ferryman:5The object of the rule of res judicata is always put upon two grounds – the onepublic policy, that it is in the interest of the State that there should be an endof litigation, and the other, the hardship on the individual, that he should bevexed twice for the same cause.[26] There are different types of res judicata. Mrs Anderson's argument is based onissue estoppel. She argues that the essential matters in issue in Westpac's claim havebeen finally determined by her acquittal before the District Court.[27] To establish an issue estoppel the following factors are required:6• a final judgment;• between the same parties and/or their privies;• litigating in the same capacity;• on the same pleaded issue;3 At 89.4 Shiels v Blakely [1986] 2 NZLR 262 (CA) at 266.5 Lockyer v Ferryman (1877) 2 App Cas 519 at 530.6 See for example Victoria Street Apartments Ltd (in liq) v Sharma HC Auckland CIV-2009-404-8377, 14 October 2011 at [15].[28] The discharges in relation to the seven counts are deemed acquittals. They arefinal decisions of the District Court. However, the starting point as to the effect of acriminal prosecution in terms of estoppel is as stated by the Court of Appeal in Danielsv Thompson:7It has never been the law that a criminal prosecution will bar civil proceedingsbased on the same facts which gave rise to the prosecution.[29] Ms Grieve sought to overcome the difficulty posed by that statement byreliance on the case of Gregoriadis.8 Mr Gregoriadis had been prosecuted for filingfalse tax returns and was initially convicted. His conviction was set aside on appealbecause the Judge ruled the conviction had been based on inadmissible secondaryevidence as to bank and other financial records fundamental to the preparation of theCommissioner's (CIR's) accretion assessment.[30] The Commissioner also assessed Mr Gregoriadis as being liable for penal taxfor filing false returns. The returns in issue were the same returns the subject of thecriminal proceedings. Mr Gregoriadis successfully argued the CIR was estopped fromclaiming the civil penal tax due to his acquittal in the criminal proceedings. The Courtof Appeal found that the CIR's attempt to introduce evidence designed to establishthat the returns were false challenged the finding that had been made against him inthe prosecution proceedings. There was no reason why estoppel per rem judicatumshould not be available. The critical factor was whether the tax returns were false.That had been finally decided in the criminal prosecution against the CIR.[31] Ms Grieve submitted that the substance of the allegations against MrsAnderson in both the SFO prosecution and in Westpac's claim were the same, as inthe Gregoriadis case. The issue is not whether the documents relied on to obtain thefunds through the LOC facility were false but whether Mrs Anderson knew that theuse of the LOC facility in this way and therefore the use of the documents wasdishonest. The evidence and witnesses Westpac will rely on to prove its case willeffectively be the same. There will be a significant overlap in the number of witnessesand their documents. While the standard of proof might be different in civil7 Daniels v Thompson [1998] 3 NZLR 22 (CA) at 33.8 Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110 (CA).proceedings, where the standard is grounded on fraud the standard is "flexiblyapplied" and may approximate the standard of proof required in criminal cases.9 InGregoriadis the Court considered that the standard of proof in the civil proceedingswould be "sufficiently proximate to the criminal persuasion" to render the technicaldifferences not material.[32] The argument, at least in relation to reliance on the approximation of thestandards of proof may not have the same force given the clear statements in Z v DentalComplaints Assessment Committee that there are only two standards of proof in NewZealand.10 There is no intermediate standard of proof between criminal and civilproceedings.11 It is however, unnecessary to consider that issue in any detail, as theGregoriadis case on which Mrs Anderson's case primarily relies can be distinguishedon two fundamental grounds.[33] First, there is no identity of parties. In Gregoriadis, the prosecuting authorityand the claimant were the same, the Commissioner of Inland Revenue.[34] Ms Grieve submitted in her written submissions that, while the parties here aredifferent, they were effectively privies in that Westpac could be said to be claimingthrough the prosecuting authority. Ms Grieve submitted that, while the Crown broughtthe prosecution on behalf of the public in the wider interest of administering justiceand preventing criminal behaviour it also represented the interests of Westpac as theorganisation directly affected by the alleged offending. Westpac had sought (but notbeen granted) reparation at sentencing. Westpac was the victim and its interests wererepresented by both the SFO and the Crown in bringing the prosecution. Westpac'sinterests in the prosecution were entirely aligned with the Crown's and did not extendbeyond those which the Crown represented. Ms Grieve submitted that in thosecircumstances there was a sufficient community or mutuality of interest betweenWestpac and the Crown in bringing the prosecution, as referred to and applied in Shielsv Blakely, for them to be considered privies in interest.129 Maxwell v CIR [1962] NZLR 683 at 703.10 Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, [2008] NZSC 55 at [26].11 At [102].12 Shiels v Blakely [1986] 2 NZLR 262 (CA) at 268.[35] Westpac was not the complainant in the criminal proceedings. Even if it hadbeen, there would still be a lack of privity between it and the Crown represented bythe SFO in the District Court prosecution. Westpac had no derivative interest in theprosecution. Unlike in Shiels, where the plaintiff who was estopped from bringing anew proceeding was a member of the union that had brought the original proceeding,and whose interests in pursuing the proceedings were identical, the required mutualityof interest between Westpac and the Crown is not present.13 The purposes of a criminalprosecution and a civil action are quite different. In bringing a prosecution the Crownrepresents the public interest. Westpac's interest is entirely private. Westpac does nothave the required degree of identity with the Crown.[36] Nor is it relevant that Westpac sought a reparation order. No reparation wasordered. But even if a reparation order had been made in its favour it would not haveprevented Westpac from pursuing civil proceedings for damages to make up theshortfall between the amount recovered by way of reparation and its loss.14[37] The Gregoriadis decision can also be distinguished on the basis that the civilproceedings were effectively penal in nature. The CIR sought penalty tax assessments.Such proceedings are of a quite different nature to the compensatory nature of therelief sought by Westpac in the current proceedings.[38] Again, in the circumstances, it is strictly unnecessary to deal with the issue ofwhether the discharges were a final determination of the issue for the purposes of theissue estoppel point. There can be no issue estoppel arising from the criminalproceedings. There was no final judgment between the same parties or their privies.The receivers' proceedings[39] For the above reasons and an additional one, there can be no issue estoppelarising from the receivers' proceedings. The receivers issued the proceedings in thename of the company, LWRI. LWRI was not the privy of Westpac. Further, there was13 At 269.14 Sentencing Act 2002, s 38(2).no final judgment. The proceedings were settled at mediation. Issue estoppel doesnot arise.Abuse of process[40] That leaves the abuse of process point. During her oral submissions Ms Grieveconceded there were issues for Mrs Anderson with the issue estoppel argument. Sheplaced more emphasis on the abuse of process argument.[41] A leading case in relation to abuse of process is the case of Hunter v ChiefConstable of the West Midlands Police.15 Mr Hunter had been convicted of murder asone of Birmingham bombers. During his murder trial he had challenged theadmissibility of an oral statement he had made to the police. He alleged his statementhad been made under duress because of violence and threats of violence by the police.After a voir dire during the criminal trial the judge rejected Mr Hunter's evidence andruled the statement admissible. The conviction was upheld on appeal. SubsequentlyMr Hunter sought to pursue civil proceedings against the police force alleging he hadbeen assaulted while in police custody for questioning. The House of Lordsunanimously upheld the decision to dismiss his civil proceeding as an abuse ofprocess. Their Lordships described the proceedings as constituting "the mounting ofa collateral attack upon a final decision made by another court of competentjurisdiction".16 To allow the proceedings to continue would bring the administrationof justice into disrepute among right-thinking people.17[42] Ms Grieve submitted that following Hunter the Courts of New Zealand havebeen less prescriptive about which of the two, abuse of process or issue estoppel,should apply to uphold the principles at play which are:(a) the public interest in the finality of litigation;(b) the protection of individuals from repeated suits of the same cause; and15 Hunter v Chief Constable of the West Midlands Police [1982] AC 529, [1981] 3 All ER 727.16 At 541.17 At 536.(c) the integrity of the justice system – to ensure there are no collateralattacks on judicial determinations and to ensure that crimes aredetermined by the criminal process.[43] The Court of Appeal discussed the relevant principles that arose where civilproceedings followed a criminal process in the case of Daniels v Thompson.18 Theissue was whether the Court should permit claims for exemplary damages for allegedlycriminal conduct where that matter had been determined by a criminal court. TheCourt declined to permit the claims for exemplary damages. If there had been aconviction, the defendant would already have been punished and should not bepunished again by an award of exemplary damages against him.19 Where thedefendant had been acquitted it would be undesirable to allow what was substantiallythe same issue to be relitigated for the sole purpose of extracting a punishment for theaction.20[44] More recently the issue of abuse of process was considered by the SupremeCourt in Z v Dental Complaints Assessment Committee.21 Z had been acquitted oncharges of indecently assaulting three patients, two of whom had been sedated beforethe alleged assault. The three patients together with another, who had not been acomplainant in the criminal trial, then referred the matter to the Dental Council. Zwas prosecuted by the disciplinary body. Elias CJ, citing Lord Bingham in the Houseof Lords decision of Johnson v Gore Wood & Co (a firm),22 noted that what constitutesabuse of process in this context requires a "broad, merits-based judgment in context".23[45] The majority held there was no abuse of process in respect of all but one of thecharges because the scope of the disciplinary matters was wider than that of thecriminal proceeding.[46] Two points arise for consideration from the reasoning in the cases of Hunter vChief Constable of the West Midlands Police, Daniels v Thompson and Z v Dental18 Daniels v Thompson [1988] 3 NZLR 22 (CA).19 At 47-48.20 At 51.21 Dental Complaints Assessment Committee [2009] 1 NZLR 1, [2008] NZSC 55.22 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31.23 At [2].Complaints Assessment Committee. First, whether substantially the same issue thatwas before the District Court is raised by Westpac's proceedings and secondly, therelevance of the fact Westpac's claim is for compensation rather than exemplarydamages.[47] The Crown was required to prove the following elements beyond reasonabledoubt in its prosecution:24(a) Mrs Anderson used a document;(b) that she did so dishonestly without a belief there was consent to orauthority for using the document in that way; and(c) she did so without claim of right; and(d) she did so with intent to obtain a pecuniary advantage or valuableconsideration.[48] In Amaltal Group Ltd v Maruha Corp the Court of Appeal confirmed the tortof deceit involves:25(a) a false representation as to a past or existing fact;(b) known to be untrue or without belief in its truth or being reckless as toits truth;(c) with an intention that the claimant should act on the representation; and(d) action by the claimant in reliance on the representation which leads toloss.[49] Ms Grieve submitted that the core issue in both proceedings was the same. Itwas not whether the documents relied on to obtain the funds through the LOC were24 Crimes Act 1961, s 228.25 Amaltal Group Ltd v Maruha Corp [2007] 1 NZLR 608 (CA) at [46]–[50].false, but whether Mrs Anderson knew that the use of the LOC in this way andtherefore the use of the documents was dishonest. She argued that the unsuccessfulcriminal prosecution brought against Mrs Anderson traversed all the availableevidence about the use of the LOC facility and was unsuccessful in establishing thekey ingredient of dishonesty on her part.[50] In his submissions on the facts, Mr Brodie emphasised the nature of the LOCs.The whole process involving the LOCs was document based not goods based. Hesubmitted it was irrelevant to the banks whether goods were supplied by Florian ornot. He noted the invoices generated by Florian referred in very general terms togoods. No attempt had been made to clarify what those goods were or to seek furtherinformation.[51] With respect to that submission, it rather overlooks the significant point thatthe banks involved in the transactions relied on the documents. The banks relied onthe invoices which on their face stated that Florian was to supply goods to the LWRIsubsidiaries when that was not the case.[52] There was a significant degree of overlap between the elements of the offencein the criminal proceedings and the elements of the torts Westpac relies on in its civilproceedings. Mrs Anderson clearly used a document. She did so to use the facility toobtain finance from the banks. But the principal argument for Mrs Anderson indefence of the criminal prosecution was the claim of right defence. In his openingaddress Mr Davis split the charges into two groups, counts 1–4 and 5–8. For counts1–4 he told the judge the defence was, monies were advanced, and goods were bought.For counts 5–8 he submitted that Mrs Anderson had been effectively removed fromthe business and simply signed what was put in front of her. Again, she signed offbelieving that goods would be bought. In both cases the argument was that MrsAnderson believed she was entitled to act in the way she did.[53] The claim of right defence was available if Mrs Anderson believed, at the timeof her act, she had a proprietary or possessory right in the property in relation to whichthe offence was alleged to have been committed.26 Her belief need not have been26 Crimes Act 1961, s 2(1) claim of right.reasonable, but it had to be genuine.27 It could be based on ignorance or mistake offact.28[54] Mrs Anderson places some reliance on the comments of the District CourtJudge in sentencing and the evidence of Mr Davis regarding the Crown's decision notto continue its case against Mrs Anderson.29[55] The Judge observed that Mrs Anderson was aware of how the facility had beenoperated, but she then went on to suggest "[y]ou were not aware as to perhaps theillegality in relation to how both your husband, your son had organised that facility,but also how Mr Sugden was operating [it]".30 Those general and tentative suggestionsin the sentencing notes fall well short of any reasoned decision by the District Courtdetermining Mrs Anderson's guilt or innocence.[56] Mr Davis' evidence was that while he was cross-examining Mr Sugden theCrown prosecutor, Mr Stanaway, approached him to seek a resolution of theproceeding. Mr Davis also said that the Judge expressed the view on the evidence aspresented that the prosecution could not succeed. However, Mr Davis accepted thathe did not have transcripts available when he prepared his affidavit. He also acceptedthat, while he believed the Judge had formed a view that Mr Sugden was not comingup to the mark and made a comment to that effect which was a catalyst for thediscussion with the Crown, the comment was not recorded anywhere in the notes ofevidence.[57] Given that goods were ultimately sourced by the LWRI entities using thefunding obtained through the LOCs, it is understandable why the Crown could havereached the conclusion it might not have been able to disprove Mrs Anderson believedshe was able to act in the way she did. But all of that is of limited assistance to MrsAnderson in the civil proceedings. The claim of right defence is not a defenceavailable to Westpac's civil claim.27 Jardine v R [2016] NZCA 371 at [34].28 Crimes Act 1961, s 2(1) claim of right.29 R v Anderson DC Christchurch CRI-2011-009-7510, 25 November 2013.30 At [2].[58] The House of Lords decision of Derry v Peek establishes that, for the purposesof the tort of deceit, the focus is on the representation made by the defendant. 31 Thefocus in Westpac's case against Mrs Anderson will be on whether Mrs Anderson hadan honest belief in the truth of the representation, not whether she believed she wasentitled to use the facility that way. Applying the ruling from Derry, Westpac willhave to establish that Mrs Anderson knowingly made a false representation, or madethe representation without belief in its truth, or recklessly (being careless whether itwas true or false).32[59] Westpac also relies, in the alternative, on an unlawful means conspiracy. Thatis based on an agreement between Mrs Anderson, her husband and son, to obtainmoney from Westpac, knowing it would not be used for the purchase of stock. Theunlawful means was the false representations in the Florian invoices. Again, thecolour of right defence is no defence to such a claim.[60] Next, unlike the case of Z v Dental Complaints Assessment Committee, thedischarges under s 347 of the Crimes Act 1961 were based on a practical plea bargainmade during the trial. While the discharges are deemed acquittals, they are not thesame as a finding of not guilty following trial.33[61] While there will be a significant overlap in terms of the evidence to be covered,for the above reasons I do not consider the same determinative issue arises inWestpac's proceedings as arose in the criminal proceedings.[62] At this point it is convenient to review the action brought by receivers againstMr and Mrs Anderson as directors. The claim pursued by the receivers as agents ofand in the name of LWRI raised four causes of action:(a) money had and received in relation to the sum of $743,081;(b) knowing receipt in relation to the sum of $743,081;31 Derry v Peek (1889) 14 App Cas 337.32 At 356.33 R v Grime [1985] 2 NZLR 265 (CA) at 269.(c) money had and received in relation to the sum of $200,530; and(d) knowing receipt in relation to the sum of $200,530.[63] While part of the pleading involved allegations that Mr and Mrs Andersonmanaged the business of the plaintiff recklessly and fraudulently, including obtainingseveral sums from Westpac in relation to four of the impugned transactions, the causesof action were directed at recovering money received into personal bank accounts fromthe account of Lane Walker Rudkin. As noted, the receivers' proceedings wereresolved by mediation. The scope of the receivers' proceeding was quite different tothe claim pursued by Westpac.[64] The second and perhaps more determinative point is that, unlike the case ofDaniels v Thompson, Westpac's claim is for compensatory, not exemplary damages,and unlike Z v Dental Complaints Assessment Committee it is a civil as opposed to adisciplinary process.[65] The starting point is that a criminal prosecution will not bar civil proceedingsbased on the same facts.34 In Daniels v Thompson the Court recorded that the positionin relation to compensatory damages was very different to the claims before it whichwere for exemplary damages. The Court made the point that, unlike other civilproceedings which aim to compensate the victim of a wrong, (an aim which is entirelyindependent and separate from the criminal law aim to punish the offender), exemplarydamages fulfil broadly the same punitive purpose as criminal sanctions.35 It was forthat reason the claims were an abuse of process.[66] While in Gregoriadis v Commissioner of Inland Revenue the Court suggestedthat it did not matter whether the matter was approached as an issue estoppel or abuseof process in that case again the relief sought was not compensatory. The reliefpursued was penalty assessments of tax.34 Daniels v Thompson [1998] 3 NZLR 22 (CA) at 33.35 At 51.[67] Unlike Hunter v Chief Constable of the West Midlands Police, Westpac'sproceedings cannot be characterised as an abuse of process, as Westpac's clear motivesfor bringing the proceeding are not to collaterally attack the District Court granting ofthe s 347 application. There can be no abuse of process where an important elementof Westpac's claim has not been determined against it in the previous criminalproceedings. Indeed, on one view of it, the element of Mrs Anderson's knowledge ofthe falsity of the invoices (at least in relation to counts 1–4) might have beendetermined as a concession against her interest. All that goes to show is that anacquittal in these circumstances (let alone a discharge) is not an acquittal on eachelement of the offending.[68] In the circumstances of this case, and applying the broad-based approachsuggested in Johnson v Gore Wood & Co (a firm), it cannot be said that Westpac isabusing the process of the Court to pursue its civil claim against Mrs Anderson.36 Thepurpose of Westpac's claim is fundamentally different to the purposes served by thecriminal proceeding.Result[69] The preliminary question is answered as follows. The previous proceedings donot give rise to an issue estoppel. Westpac's proceedings are not an abuse of process.Costs[70] Westpac is entitled to costs. Costs to scale 2 band B would be appropriate. Icertify for second counsel.__________________________Venning J36 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31.