Jako Industries Pty Ltd v Perkins (WA) Pty Ltd

[2025] WASC 129

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   JAKO INDUSTRIES PTY LTD -v- PERKINS (WA) PTY LTD [2025] WASC 129

CORAM:   HOWARD J

HEARD:   26 MARCH 2025

DELIVERED          :   26 MARCH 2025

PUBLISHED           :   17 APRIL 2025

FILE NO/S:   CIV 2410 of 2024

BETWEEN:   JAKO INDUSTRIES PTY LTD

Plaintiff

AND

PERKINS (WA) PTY LTD

Defendant

Catchwords:

Practice and procedure - Application for pre-action discovery - Whether plaintiff has a potential cause of action against the defendant - Whether discretion to order pre-action discover is enlivened - Application dismissed

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
Defendant	:	Mr T J Porter

Solicitors:

Plaintiff	:	Bennett
Defendant	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

BWS v ARV [No 2] [2021] WASCA 62

HOWARD J:

(This judgment was delivered extemporaneously on 26 March 2025 and has been edited to correct matters of grammar, include complete references and headings.  The publication of these reasons was delayed by matters beyond the Court's control)

Overview

1. By an application filed 27 November 2024, the plaintiff (Jako Industries) seeks pre-action discovery from the defendant (Perkins) of the following documents, pursuant to O 26A r 4:

   1.1all written communications between the defendant and the Department of Finance (the Department) in relation to the plaintiff's claim under the Scheme for the Armadale Courthouse and Police Complex project (ACPC); and

   1.2any documents recording payments made or approved by the Department to the defendant under the Scheme for the ACPC.[1] (original emphasis)

   [1] Originating Summons filed 27 November 2024.

2. The application was supported by an affidavit of a director of Jako Industries, Velko Anthony Jakovich, made and filed 27 November 2024 (Jakovich affidavit).

3. Jako Industries also relied on an affidavit of a junior solicitor of its solicitors, Summer Jade Pitts, made 11 March 2025 and filed 19 March 2025. Both affidavits were read without objection.

4. It appears to be common ground that on or about 20 September 2019, Perkins entered into a contract with the Minister for Works (Minister) to construct a courthouse and police complex at Armadale in this State.  That is defined in Jako Industries' application as the ACPC.

5. The Department of Finance (Department) administered the ACPC project on behalf of the Minister.

6. On or about 12 March 2020, Perkins, as the head contractor, entered into a subcontract with Jako Industries for the latter to provide mechanical services at the ACPC project.

7. On or about 12 May 2022, the State Government introduced certain measures to support the building and construction industry as a result of the COVID-19 pandemic.

8. The Scheme (using that term neutrally here) was the subject of correspondence between the State Solicitor's Office (SSO) and solicitors for Jako Industries dated 31 July 2024.

9. The SSO described the Scheme in the following way:

   2.The Head Contractor Relief Scheme provided financial relief to head contractors that entered into certain fixed priced contracts on Department of Finance and Department of Communities projects.

   3.The Head Contractor Relief Scheme operated to pay a Head Contractor, such as Perkins (WA) Pty Ltd (Perkins), up to 50% of costs actually incurred by the Head Contractor that were assessed to be genuine cost escalation claims under the terms of the scheme. A condition precedent to any payment being made to a Head Contractor under the scheme was a requirement that the Head Contractor had made payment to subcontractor whose work formed part of the Head Contractor's cost escalation claim.[2] (original emphasis)

   [2] Jakovich affidavit attachment VJ9 180.

10. Mr Jakovich gave evidence of a meeting between Jako Industries and Perkins on 25 May 2022.  I am told that the significance of that meeting to Jako Industries' application is that Jako Industries effectively entrusted Perkins with its claim. [3]  I use that possessive term neutrally, at this stage, as well.

    [3] Jakovich affidavit [9.3].

11. On 8 June 2022, Jako Industries sent by email a document labelled 'CV69',[4] which was said to be for costs incurred due to the COVID-19 pandemic and the resulting cost escalations.

    [4] Jakovich affidavit attachment VJ5 160.

12. The amount claimed by Jako Industries was, it appears, at least $998,100.[5]

    [5] Jakovich affidavit attachment VJ5 160 - 161.

13. There was further correspondence between the parties following the receipt of 'CV69' by Perkins. In particular, Jako Industries relies on an email sent from Mr Paul Taccagni of Perkins on 15 June 2022[6] to establish an agreement, in a loose sense, as I understand it, to the effect that Perkins would liaise with the Department if Jako Industries sought to bring itself within the scheme and make a claim for financial relief.

    [6] Jakovich affidavit attachment VJ4 157 - 158.

14. There appears then to be a gap in the evidence until about June 2023.  I say that without criticism.

15. By an email on 20 June 2023, Perkins sent to Jako Industries the following extract from an email it had received from the Department:

    I have reviewed the additional information provided by Jako. Referring to the document titled Perkins 230612 (copy attached), I have tried to isolate the cost escalation components, as opposed to quantity variations, which are dealt with separately under the contract.  My summary of the claim, as it relates to cost escalation is set out in the table below. As you can see the total escalation claim amounts to $330,045 (inc GST), well short of the $954,291 claimed by Jako.

    Through Perkins, we have asked for additional documentation to support the cost escalation amount claimed.  The documents provided thus far do not support the full amount claimed.

    Would Jako be prepared to provided [sic] a Statutory Declaration to state that the full amount claimed below is entirely attributable to material and labour cost escalation that has occurred between September 2019 and now?[7]

    [7] Jakovich affidavit attachment VJ3 145 - 146.

16. This email is significant to the way Jako Industries seeks to make good its application.

17. Also of importance is the table which immediately follows the above extract, and appears to be part of the email sent by the Department.[8]

    [8] Jakovich affidavit attachment VJ3 146.

18. That table shows how the figure of $330,045.39 is derived under the column headed 'Cost Escalation'.  That column, however, in my view, needs to be read in conjunction with the comments which are in the most right-hand column, which includes words such as 'taken as presented' and 'no cost escalation detailed in claim' and 'margins are not included in cost escalation claims'.

19. With respect, I consider that Mr Jakovich rather misstates the effect of this email in his affidavit where he says:

    [14]On 20 June 2023, Perkins told Jako its covid costs claim had been assessed by the Department at $330,045.39, as shown in "VJ-3" (146).[9]

    [9] Jakovich affidavit [14].

20. Again, with respect, I consider that misreading of the email is a foundational part of how Jako Industries seeks to put its application in this court.[10]

    [10] See, for example, submissions of Jako Industries filed 3 January 2024 [30].

21. I do not consider that the words used in that email can reasonably, in context, be read in the way that Mr Jakovich and Jako Industries through their solicitors seek to do.

22. By letter dated 13 December 2023, the Department on behalf of the Minister wrote to Jako Industries' then solicitors and said, relevantly, the following:

    1.Yes, the Department has made a payment to Perkins under the Scheme; and

    2.No, the Department has not made any payment to Perkins in respect of your client's claim under the Scheme.[11]

    [11] Jakovich affidavit attachment VJ7 166.

23. There is then a letter which I have already referred to from the SSO to Jako Industries' solicitors on 31 July 2024, in which the following was stated:

    4.The Department understands that no payment was made by Perkins to your client in relation to cost escalation.  Accordingly, Perkins has not claimed any payment in relation to cost escalation from the Department in relation to your client.

    5.It is not clear to the Department on what basis your client contends that any payment was made to Perkins in relation to your client's cost escalation claims.  As Perkins had not paid any amount to your client in respect of its cost escalation claim, the Department assessed Perkin's escalation for the mechanical trade works provided by your client to Perkins as nil.[12]

    [12] Jakovich affidavit attachment VJ9 180.

24. In subsequent correspondence from Jako Industries' solicitors, something was sought to be made of the difference in wording between 'in respect of Jako's claim' and 'relating to Jako's claim'.[13]  It seems to me for present purposes that there is no relevant difference between those expressions.

    [13] Jakovich affidavit attachment VJ8 173.

Applicable principles

1. Uncontroversially, Jako Industries submits, and I understand this to be common ground with Perkins, that:

   [21]The principles relevant to an application for pre-action discovery under O 26A r 4 were summarised by the Court of Appeal in BWS v ARV [No 2] [2021] WASCA 62 [28]-[37] (Murphy, Mitchell, Vaughan JJA).

   [22]The discretionary power under O 26A r 4(4) is enlivened if the court is satisfied that: (a) the applicant "may have a cause of action against" the potential party; (b) the applicant wants "to commence proceedings against" the potential party; (c) the applicant has made "reasonable enquiries" for the purpose of obtaining sufficient information to enable him or her to decide whether to commence proceedings; (d) the applicant has not been able to obtain sufficient information to enable him or her to make a decision; and (e) there are "reasonable grounds for believing" that the potential party had, has, or is likely to have had or have, possession of documents that may assist the applicant in making the decision.

   [23]The requirement that an applicant may have a cause of action against the potential party: (a) is assessed objectively; (b) requires the applicant to establish "more than mere assertion, conjecture or suspicion"; and (c) does not require the applicant to demonstrate the actual existence of a cause of action16 or a prima facie cause of action.[14] (footnotes omitted)

   [14] Submissions of Jako Industries filed 3 January 2025 [21] - [23].

1. Again, from BWS v ARV[15] in the Court of Appeal, it is common ground that if this Court's discretion is enlivened, then the following considerations are relevant to whether the Court will exercise its discretion:

   [15] BWS v ARV [No 2] [2021] WASCA 62 (BWS v ARV).

   1.the likelihood that a cause of action of the kind suggested will be found to exist;

   2.the nature and significance of the potential cause of action;

   3.the likely effect of an order of the kind contended for on the potential party;

   4.whether the applicant has any other adequate means of obtaining the information;

   5.the nature and confidentiality of the documents proposed to be obtained;

   6.the possible significance of the information in a documents to the decision whether to commence the contemplated proceedings;

   7.whether the applicant is able to compensate the potential party for its costs of complying with the order;

   8.whether there is any evidence of bad faith on the part of the applicant; and

   9.the extent to which the cost and effort involved in undertaking the proposed discovery and inspection is proportionate to the likely value of the claim if successful.[16]

Does Jako Industries have a cause of action

[16] BSW v ARV [25] - [36].

1. The real question, it seems to me, is whether it can be said, relevantly within the authorities, that Jako Industries may have a cause of action.

2. Mr Jakovich deposes to his belief that:

   Jako may have a claim against Perkins arising from the fact that the Department had apparently assessed Jako's covid costs claim at $330,045.39 on 20 June 2023, and Perkins' assertion that no part of the payment made to it by the Department on 22 September 2023 related to Jako' s covid costs claim…[17] 

   [17] Jakovich affidavit [20].

3. Jako Industries submits that it may have a cause of action against Perkins for one of:

   1.a breach of fiduciary duty;

   2.negligence; or

   3.unjust enrichment.[18]

   [18] Submissions of Jako Industries filed 3 January 2025 [25].

4. Jako Industries puts the basis for, presumably, the breach of fiduciary duty and the negligence action as follows:

   [27]Perkins' role as intermediary between Jako and the Department may give rise to fiduciary duties or a duty of care in respect of Jako's claim under the scheme

   …

   [28]If Perkins owed Jako fiduciary duties or a duty of care then it may have breached those duties by failing to pass through or procure for Jako the amount for which the Department had provisionally assessed that Jako was entitled to under the scheme, being approximately $330,000.[19]

   [19] Submissions of Jako Industries filed 3 January 2025 [27] - [29].

5. Again, as will be seen, a significant part of the way these claims are put is that Jako Industries was entitled, through Perkins, to a claim under the Scheme and had been assessed as being entitled to a payment of approximately $330,000.

6. Perkins' position is that the Department had allowed nil dollars in respect of Jako Industries' claims.  I have already referred to the letters from the Department and the SSO respectively which make plain the Department's position.

7. For the reasons which follow, I do not consider that Jako Industries has enlivened the Court's jurisdiction, and I am not satisfied it may have a cause of action against Perkins.

8. As will already be plain, I do not accept the reading of the Departmental email which Perkins sent through to Jako Industries on 20 June 2023, which I quoted above.

9. I think the natural and only reasonable reading of that email in context, particularly, but not exclusively, having regard to the table, is that, of the more than $900,000 claimed by 'CV69', only $330,045 might be attributable to 'escalation claims', but, more significantly, there was a request for further information made.

10. In any event, it appears plain that both Perkins and the Department say that no money was paid to Perkins in respect of or in relation to any claim by Jako Industries.

11. Of the potential causes of action put forward, it is at this point and on the material presented impossible to see how a claim to unjust enrichment against Perkins could lie.

12. The breach of fiduciary duty and negligence claim assumes, as is submitted in Jako Industries' reply submissions:

    … Perkins' role as intermediary between Jako and the Department puts Perkins in a position where it had the power to influence whether any payment was ultimately made to Jako.[20]

    [20] Jako Industries’ submissions in reply filed 12 March 2025 [11.3].

13. And secondly, that Perkins did something or failed to do something vis-a-vis Jako Industries' claim, made in 'CV69' or otherwise, to the detriment of Jako Industries.

14. Against that, there seems to be considerable force in the submission that the relevant materials disclose that Perkins appears to have acted, in effect, as a post box between Jako Industries and the Department.

15. In my view, there is nothing on the material which could be described as:

    … some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion.[21]

    [21] BWS v ARV [33] (per the Court).

16. While Jako Industries did not have to positively establish the existence of a cause of action, it has to demonstrate more than mere assertion, conjecture or suspicion.

17. I do not consider on the material it has done so.

18. To be clear, I do not consider that it has established that Perkins may have owed it a fiduciary duty, nor that it may have breached such a duty.

19. Further, I do not consider that Perkins was in a position where it may have owed a duty of care to Jako Industries, nor that Perkins may have breached that duty.

20. In all of the circumstances, I do not consider that the Court's jurisdiction has been enlivened and I dismiss the application.

Disposition

1. Because of the observations made by the Court of Appeal in BWS v ARV, it seems to me that it would not be appropriate for me to go on and try and consider, on an alternative basis, whether, if I am wrong about the enlivening of the jurisdiction, I should assess how I would have exercised that discretion.

Orders:

1.The plaintiff's application for pre-action discovery is dismissed.

2.The plaintiff is to pay the defendant's costs, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IF

Associate to the Hon Justice Howard

17 APRIL 2025