COOPER -v- ZAGARI [2026] WADC 75

[2026] WADC 75 [2026] WADC 75 (MJW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : COOPER -v- ZAGARI [2026] WADC 75 CORAM : REGISTRAR NUNN HEARD : 23 MAY 2025 DELIVERED : 19 AUGUST 2026 FILE NO/S : CIV 1015 of 2024 BETWEEN : MEISHA JOY COOPER Plaintiff AND CONCETTA ZAGARI Defendant Catchwords: Costs - Plaintiff deprived of some or all of her costs - Cost unnecessarily or unreasonably incurred - Application of Pihler v Genidi [No 2] [2001] WADC 74 - Turns on own facts. Legislation: Rules of the Supreme Court 1971 (WA), O 66(2) Result: The application is dismissed -- 1 of 16 -- [2026] WADC 75 [2026] WADC 75 (MJW) Page 2 Representation: Counsel: Plaintiff : Mr K S Pratt Defendant : Mr A Vucak Solicitors: Plaintiff : Separovic Injury Lawyers Defendant : Hall & Wilcox (Perth) Case(s) referred to in decision(s): Bicker v Aegis Aged Care Staff Pty Ltd [2024] WADC 117 Hall Chadwick Corporation Finance (WA) Pty Ltd formerly known as Hall Chadwick Securities Pty Ltd v Axiom Properties Ltd [2002] WASC 179 Pihler v Genidi [No 2] [2001] WADC 74 -- 2 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 3 REGISTRAR NUNN: 1 Concetta Zagari was involved in an accident whilst driving. Her car collided with a motorcycle ridden by Paul Cooper. Paul did not survive the collison. 2 Meisha Cooper is Paul's daughter. She did not witness the collison but claims that as a result of her father's death she suffered a psychiatric injury. She brought a claim for this. The Insurance Commission of Western Australia (ICWA) defended the action on behalf of its insured Ms Zagari. 3 The matter proceeded to a pre-trial conference, where an agreement to settle the case for a sum of money was reached. However, the action was not then finalised, as ICWA sought a costs order against Ms Cooper. That manifested itself as a chamber summons for an order under O 66(2) of the Rules of the Supreme Court 1971 (WA) (RSC) seeking to deprive Ms Cooper of some or all of her costs. 4 ICWA advances four reasons why Ms Cooper ought to be deprived of some or all of her costs: 1. Firstly, she failed to prove she had a claim prior to the commencement of the legal proceedings. 2. Secondly, she failed to engage in pre-litigation settlement negotiations with ICWA as per ICWA's internal policy. 3. Thirdly, she pleaded that she had sustained injuries without factual material being available to provide a proper basis to advance the injuries pleaded. 4. Fourthly, that due to these issues, costs have unnecessarily or reasonably been incurred, which ICWA should not be liable for. In oral submissions, ICWA appeared to advance a fifth argument, that Ms Cooper's claim was also for an unreasonably excessive amount, and that this too has resulted in costs being unnecessarily or unreasonably incurred. 5 For the reasons that follow, I do not consider that Ms Cooper ought to be denied any of her costs. -- 3 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 4 Preliminary observations 6 No objections were taken to the affidavit evidence received. This consisted of seven affidavits, being the: 1. Affidavit of Tony Separovic dated 20 December 2024. 2. Affidavit of Tony Separovic dated 12 February 2025. 3. Affidavit of Aimee Tamara Schmidt dated 7 May 2025 on behalf of Ms Cooper. 4. Affidavit of Ellen Lucy Hungerford dated 12 November 2024 on behalf of Ms Cooper. 5. Affidavit of Ellen Lucy Hungerford dated 14 November 2024 on behalf of Ms Cooper. 6. Affidavit of Ellen Lucy Hungerford dated 11 April 2025 on behalf of Ms Cooper. 7. Affidavit of Terry Dickenson for ICWA dated 5 May 2025. 7 ICWA contends that the issues in dispute are reflective of a broad issue between the parties. I am not certain whether that means the plaintiff, the plaintiff's lawyers, or plaintiff lawyers in general. Mr Separovic, on the other hand, in one of his affidavits, makes broad reference to ICWA and its policy and seems to express some considerable dissatisfaction with it. All of this is very interesting, but not terribly relevant. I am only called on to determine the application before me, and I confine myself to the facts of this case. The issues 8 It is easy to characterise - or more correctly mischaracterise - this dispute as being about the application of ICWA's policy. However, that would be to only focus on one aspect of the issue in dispute between the parties. Both limbs of RSC O 66(1)(2) must be considered, being that the claim was brought for an unreasonably excessive amount, or that Ms Cooper's conduct prior to or after commencing the action warrants depriving her of some or all of her costs. -- 4 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 5 9 As I understand matters, this then raises the following issues for consideration: (a) was Ms Cooper's claim for an unreasonably excessive amount?; (b) has that resulted in costs being unnecessarily and unreasonably incurred?; and (c) what was Ms Cooper's conduct before or after the commencement of the litigation, and that requires consideration of the four issues I have just mentioned. 10 If after considering these issues, I am of the opinion that Ms Cooper has caused costs to be unnecessarily or unreasonably incurred, because of either her conduct or her claim being brought for an unreasonably excessive amount, it is open to me to make an order depriving her of some or all of her costs. Was Ms Cooper's claim for an unreasonably excessive amount? 11 ICWA contends the claim was brought for an excessive amount and that this can be discerned from a comparison of what was claimed and what the parties agreed to settle the matter for, being $40,000. 12 There is no dispute that this is the amount the parties agreed to settle for. This is referenced in the affidavit evidence. I am also conscious that there is a proposed memorandum of consent order before me for execution to that amount. 13 In oral submissions, ICWA contended that Ms Cooper's particulars of damage was in the realm of $240,000. However, in its written submissions, par 38, ICWA contended that Ms Cooper's claim was for $126,000 plus future economic loss and costs and disbursements. 14 The particulars of damage filed do not necessarily indicate quantifying Ms Cooper's damages at around $65,000, plus a global award for future economic loss and recovery of past medical expenses. 15 The amounts for future economic loss and past medical expenses are not set out in the particulars of damage. I cannot see, however, that there is any affidavit evidence of what these figures might be. Accordingly, I am unable to arrive at any conclusions as to what the amount claimed was, let alone whether it was a reasonably excessive amount. -- 5 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 6 16 ICWA's written submissions refer to well-known exceptions to the general rule that successful parties are entitled to recover their costs, such as where costs have been increased because a party has tried but failed on an issue, a claim has been groundless or consciously exaggerated, or where nominal damages have been awarded only. 17 However, in this instance, I am not assisted by these, as these appear to apply to matters that have proceeded to trial, or where evidence has been unpacked such that findings on these matters can be made. 18 There is no evidence before me as to why Ms Cooper agreed to accept $40,000 to settle her action, nor any evidence that would support a conclusion that, by comparison to what she was seeking in damages, this was a nominal amount only, or that she was claiming to be entitled to was unreasonably excessive. Has this resulted in costs being unnecessarily or unreasonably incurred? 19 Given that I am unable to arrive at a conclusion as to whether Ms Cooper's claim was for an unreasonably excessive amount, I am equally unable to determine whether this has resulted in costs being unnecessarily or unreasonably incurred. 20 In any event, even if I were able to arrive at a finding of what Ms Cooper had, in fact, claimed, the costs associated with getting this matter to a pretrial conference where liability itself remained in dispute does not support a conclusion that costs were unreasonably or unnecessarily incurred as a result of the amount being claimed. What then did Ms Cooper do before or after the commencement of the action? Was Ms Cooper required to prove she had a claim prior to commencing the action? 21 This is perhaps infelicitous language as the relevant time for matters of proof is at the end of the process (ie trial), not the beginning. 22 However, if regard is had to ICWA's written submissions, I understand this to mean the claim could not have succeeded as the requisite element of foreseeability for the kind of harm Ms Cooper claimed could not be established or that the claim was brought prematurely as it was not until the receipt of Dr Stephen Proud's report that a recognised psychiatric illness was diagnosed. -- 6 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 7 23 This turns on the application of s 5S(1) of the Civil Liability Act 2002 (WA) (the Act), which requires that what must be foreseen is: … that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. 24 The authorities referenced by ICWA direct attention to the extension of the test of foreseeability set out by s 5S(1). 25 What then, at least in relation to this point, is the relevance of Dr Proud's report diagnosing a recognised psychiatric illness that was not received until after the action was commenced? 26 Section 5S(1) does not require Ms Cooper herself to suffer a recognised psychiatric illness. Rather, what she must suffer is mental harm - as defined by s 5Q of the Act - which is an impairment of a person's mental condition. 27 I do not cavil with the propositions that ICWA were not required to make any admissions unless it was satisfied these were to be properly made. However, ICWA contend that they were entitled to be satisfied that Ms Cooper suffered a recognisable psychiatric injury prior to making any admissions, hence why they say the receipt of Dr Proud's report is important. See particularly at pars 22 - 24 of ICWA's written submissions. 28 In my view, that incorrectly frames the test of to whom a duty is owed under 5S of the Act. I can accept that the report from Dr Kong Meng Liew, being Ms Cooper's general practitioner, does not state that Ms Cooper suffers from a recognised psychiatric illness. However, it is arguable, that having been asked to respond to a question asking for a diagnosis of a psychiatric condition (that is, not a physical but a mental issue). Dr Liew identified that Ms Cooper was suffering from grief to the extent that she was unable to work as a consequence of that grief. 29 This leaves open the possibility that Ms Cooper was suffering from an impairment of her mental condition. 30 I take issue with the ICWA's oral submission that Dr Liew (Ms Cooper's general practitioner) is not qualified to diagnose or recognise a psychiatric condition. -- 7 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 8 31 Certainly, Dr Liew is not a qualified specialist in psychiatric medicine. However, whether a specialist's opinion would be preferred to a general practitioner's is a matter for trial. Dr Liew is a doctor and, in my view, could provide such a diagnosis. 32 If ICWA are contending that an essential element of Ms Cooper's cause of action was absent, then that ought properly have been raised as an issue at an interlocutory stage, for summary judgment or to strike out an element of the statement of claim, not after the settlement figure has been agreed as an element of a costs application. Did Ms Cooper fail to engage in pre-litigation settlement negotiations with the Commission as per ICWA's internal policy? 33 The answer to that is that Ms Cooper did not engage in pre-litigation settlement discussions with ICWA. However, as best I can discern, the reason for this is that the policy did not apply. 34 The relevant policy seems to be a document from 1999. It is referred to in several of the affidavits, and I understand it to be the same policy in issue in Pihler v Genidi [No 2] [2001] WADC 74 (Pihler), a District Court decision on which ICWA relies. I infer from the affidavit evidence that this policy still applies, and this is the policy to which ICWA currently refers. 35 That policy is stated to apply to 'motor vehicle personal injury claims for which liability for negligence is admitted'. See particularly at cl 2A of that policy. 36 It is not in dispute that liability here was ever admitted. 37 I agree with the court's comments in Pihler that there is both a social and economic utility in the early resolution of cases, and that early conferral between parties intended to facilitate such a resolution is generally to be encouraged. 38 However, despite that general proposition, ICWA's policy does not apply in this case as liability has never been admitted. This serves to distinguish this case from Pihler. Furthermore, notwithstanding the merits of the policy and its general treatment in Pihler, ICWA concedes that the policy is not a legal requirement. -- 8 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 9 39 For ICWA (or more correctly, Ms Zagari) to have been liable in negligence, Ms Cooper must have been able to establish every element of her case. That is, that there was a duty, that the duty was breached, that she had suffered loss or damage, and that loss or damage was caused by Ms Zagari's breach. If any element of this is not proven, then liability will not be established. 40 Where duty, breach, and causation are admitted, the dispute is not so much as to liability but as to quantum of loss. The correspondence between the parties prior to the commencement of the action indicated that 'liability would not be accepted'. Nothing more specific than this was communicated. It is not apparent to me whether this was in respect of duty, breach, causation, or loss. 41 The statement of claim pleads a duty and its breach and a causal connection to Ms Cooper's alleged loss. ICWA did not admit any of these. Ms Cooper also pleaded she had sustained a recognisable psychiatric injury, listing some specific conditions as well as other illnesses to be diagnosed. This too was not admitted by ICWA. 42 Accordingly, it seems that all aspects of liability in relation to Ms Cooper's claim were not admitted. On this basis, I do not understand that ICWA's policy or Pihler apply in this situation or provide any illumination as to whether Ms Cooper's conduct in not complying with the policy ought serve to deprive her of some or all of her costs. 43 Where liability has not been admitted, I fail to see how it is inappropriate that Ms Cooper has commenced proceedings. I do not accept ICWA's submission that this is a case that there was either an obligation to comply with the policy or that failure to engage with ICWA as per the policy is a factor to which regard ought to be had. Did Ms Cooper plead that she had sustained injuries without factual material being available to provide a proper basis to advance the injuries pleaded? 44 In determining this, it is relevant to have regard to what occurred and when: 1. The collision occurred on 6 May 2023. 2. Ms Cooper wrote to ICWA on 12 October inquiring as to ICWA's position as to liability. -- 9 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 10 3. On 20 November 2023, ICWA responded, but did not address its position on liability. 4. On 30 October 2023, Dr Liew wrote the report detailing Ms Cooper's then condition. I note there is no evidence as to when Ms Cooper or her solicitors received this report. 5. The report, however, was provided to ICWA on 7 February 2024. 6. On 13 February of that year, Ms Cooper's solicitors again emailed ICWA asking for its position on liability and indicating that Ms Cooper intended to commence proceedings. 7. ICWA responded on 16 February 2024, indicating that liability was not accepted 'at this time'. 8. The writ of summons issued on 23 February 2024. 9. A memorandum of appearance was lodged in March of that year, and a statement of claim was lodged on 16 April 2024. 10. A defence was filed on 23 April. 11. On 17 June 2024, ICWA's solicitors wrote to Ms Cooper's solicitors, noting that they had yet to be provided any evidence that Ms Cooper had suffered a recognised psychiatric illness, and there had been no attempt at settlement discussions, and observing the matter was still well within the limitation period. 12. Dr Proud's report was produced on 21 August 2024 (the same day that Ms Cooper was reviewed by Dr Proud). 13. Ms Cooper's particulars of damages were filed on 27 August 2024, and on the same day ICWA's solicitors again wrote requesting 'prompt discovery of your psychiatric medical evidence'. 14. Dr Proud's report was provided to ICWA on 3 September 2024. -- 10 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 11 15. The matter was entered for trial on 17 September 2024. And then on 23 October 2024, the matter proceeded to a pretrial conference where the settlement sum was agreed. I note the limitation period does not expire until May 2026. 45 Based on the court record and the affidavit material advanced, I find those to be the correct order of events. 46 ICWA directed attention to the submission that the legal practitioner owes a duty to be satisfied that there is some credible material to support the matter pleaded and rely on such cases as Hall Chadwick Corporation Finance (WA) Pty Ltd formerly known as Hall Chadwick Securities Pty Ltd v Axiom Properties Ltd [2002] WASC 179, and in its further list of authorities referred to Bicker v Aegis Aged Care Staff Pty Ltd [2024] WADC 117. 47 ICWA contended there was no basis for Ms Cooper to have pleaded in the writ that she suffered from 'psychiatric injuries', and then specifically pleaded 'recognised psychiatric injuries' in the statement of claim, as until the production of Dr Proud's report no such diagnosis had been made and there was no factual basis for having asserted that she suffered from these injuries. 48 The authorities in question deal with matters of leave to amend pleadings and strike-out applications and, at best, to my mind, at least, apply by analogy only. As noted above, the claim was asserted to be in respect of the duty contained in s 5S of the Act, which does not require Ms Cooper to have suffered a recognised psychiatric injury, only mental harm. Whether this could have been proven at trial is a separate question. 49 If ICWA had issued the basis of the pleaded case, the appropriate mechanism was to apply to strike out those aspects of the case that did not have a factual basis or to seek summary judgment. ICWA did neither. Rather, ICWA contended that it was denied the opportunity to engage in pre-action discussions. 50 It is contended that Mr Dickenson's affidavit explains what would have occurred had ICWA been afforded the opportunity to engage in such discussions. -- 11 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 12 51 I am not certain that is, in fact, the effect of Mr Dickenson's affidavit and, in any event, I am less concerned with what would have occurred, and more concerned with what did or rather did not occur. Mr Dickenson states in his affidavit: As ICWA is a model litigant and pursuant to the policy, it is encouraged that if a settlement and or settlement negotiations can be achieved prior to legal proceedings being instituted, and as soon as practicable after the notice of claim has been instituted, then settlement and or settlement negotiations are to be explored. 52 I accept Mr Dickenson's uncontroverted evidence that ICWA is a model litigant. However, I make several observations going to the weight of that evidence. 53 Firstly, as said out above, I do not consider the policy applied, and this limits the effect of Mr Dickenson's evidence. 54 Secondly, the words 'notice of claim has been instituted' presumably means the earliest notice that ICWA had of Ms Cooper's injury and an intention to claim on it. That seems to have been by October 2023. There is no evidence that 'as soon as practicable after the notice of the claim has been instituted' that ICWA explored settlement negotiations. 55 Even if proceedings were issued - in ICWA's view - prematurely, there is no evidence that ICWA sought to engage in early settlement negotiations at any time other than the first pre-trial conference. This seems contrary to the effect of what Mr Dickenson says ICWA's practice is. 56 Thirdly, ICWA make much of the fact that Dr Proud's report was not received until after proceedings had been commenced. 57 However, Dr Proud's report only goes to the questions of damage suffered and causation. It does not go to elements of duty or breach. In any event, there is no evidence before me of any kind that Dr Proud's report has caused ICWA to change its position as to liability or to admit any of the diagnoses preferred or pleaded. That Ms Cooper was offered an amount to settle her claim does not establish that there was an admission of liability. -- 12 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 13 58 In seeking an order for costs against Ms Cooper, it must be explained how Ms Cooper's conduct before or after the commencement of the action warrants a costs order against her. In the absence of any explanation why the $40,000 was offered to settle her claim, the case stands that no admissions or changes in position were countenanced even after the receipt of Dr Proud's report. 59 I can only infer that if ICWA, as a model litigant, thought that there was no argument to be had as to duty or breach, then these issues would have been admitted, and liability for the collision - if not for the damage suffered by Ms Cooper - would have been established. In that event, the policy would have applied. However, those are not the facts of this case. There is no evidence as to why the claim settled. 60 Although Dr Proud's report (or the absence) of it might raise issues of the adequacy of the pleadings, those points were not taken when they might have been. In any event, the content of Dr Proud's report does not address the issues of duty or breach which were never admitted, presumably because ICWA, as the model litigant, thought there was an argument to be mounted on those points. Has this unnecessarily or unreasonably incurred costs which the defendant should be liable for? 61 As already noted, ICWA, even as the model litigant, are not obliged to admit liability if they consider there is an argument against it. However, claimants such as Ms Cooper are equally not obliged to wait for ICWA to admit liability. The system provides for the parties to agitate for their rights. 62 At best, I can see that is what has occurred here. 63 If so, it is difficult to see how costs have been unnecessarily or unreasonably incurred by Ms Cooper's conduct in bringing an action where liability has not been admitted. -- 13 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 14 Other elements of Ms Cooper's conduct that were raised as factors to which I should have regard Other aspects of Ms Cooper's conduct that are said to be relevant to the determination of the application Are the progress of Ms Cooper's family members actions relevant to the application? 64 Ms Cooper is not the only family member impacted by her father's death. Her siblings Austin and Morgan and her mother Rachel have separate actions on foot. Ms Cooper also has a dependency claim on foot. 65 ICWA contends that as these are matters of court record, it is open for me to have regard to the progress and nature of these actions. However, it is not clear to me to what end I am being asked to have regard to these actions. 66 Furthermore, it is not clear to me how I could do that and then afford the parties to this matter an opportunity to address me on those issues absent all parties being released from the relevant immunities and privileges that apply in regard to the use of information lodged, given that each is a separate action. 67 I see no utility, nor any ready mechanism, for me to consider any issues arising in these separate actions and I confine myself to the consideration of the facts and issues arising in this case only. Were there alternatives to commencing the action to obtain subpoenaed material? 68 Ms Cooper contends the obvious benefit of commencing the action allowed her to subpoena material from police and Main Roads Western Australia. This was relevant to the question of liability. 69 ICWA contends that alternate mechanisms - such as pre-action discovery under RSC O 26A, or freedom of information requests - were available to Ms Cooper to obtain this information. Accordingly, in commencing the action in order to subpoena this material, Ms Cooper incurred costs unnecessarily or unreasonably. -- 14 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 15 70 No evidence of what these alternatives might have cost Ms Cooper has been provided or whether these would have cost more or less than what has been incurred. Furthermore, where a request for a position on liability has been requested, and it has not been admitted, it remains arguable there was sufficient basis to issue the writ where the defendant and its position as to liability was already concrete and known. Conclusion 71 I accept that a great deal of time was left to run on the limitation period, and I accept that ICWA was not obliged to admit liability for Ms Cooper's claim. I equally accept that it was possible for Ms Cooper to obtain Dr Proud's report earlier or not commence the action until she had obtained it. 72 It is equally clear that the parties have competing views as to what might be required to plead a case under s 5S of the Act. However, having been unequivocally informed that liability would not be accepted at this time by a model litigant, and having obtained a report that supported a prima facie conclusion of a condition consistent with mental harm and being within the limitation period, I am not willing to find that it was unreasonable for Ms Cooper to have commenced her action when she did. 73 There is no evidence and any possible number of reasons why Ms Cooper might have wanted to commence her action when she did. Whilst ICWA have a clear preference for early negotiation (of which there may be a number of social and economic benefits) this application falls to be answered by reference to the constituent elements of RSC O 66(1)(2), when set against the operation of the usual rule that the successful party will generally be entitled to its costs, and in regard to the facts of this case. 74 Having regard to those elements and the material before me, I am not of the opinion that Ms Cooper ought be deprived any of her costs of the action. Indeed, having declined to order that she be deprived at any of her costs, if ICWA remain dissatisfied with any of the party-party cost claim by Ms Cooper, the appropriate mechanism is to have the cost of the action taxed. 75 In that respect, ICWA's application that Ms Cooper be deprived of some or all of her costs to the action is to be dismissed. -- 15 of 16 -- [2026] WADC 75 REGISTRAR NUNN [2026] WADC 75 (MJW) Page 16 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. PD Associate 19 AUGUST 2026 -- 16 of 16 --