Zahed v Director of Public Prosecutions (NSW) (No 2)

Zahed was the plaintiff in an appeal from the Local Court to the Supreme Court of New South Wales. The plaintiff sought an order for costs after successfully defending an appeal against a conviction for a crime. The defendant in the appeal was the Director of Public Prosecutions for New South Wales. The parties were unable to agree on the costs, leading to the need for the court to determine the appropriate order.

The court was required to determine whether the plaintiff, who had successfully defended an appeal, should be granted an order for costs. The plaintiff argued that the costs should be awarded to them on the basis of the "moment of optimism" doctrine. This doctrine posits that when a party is successful at a certain stage of proceedings, they may be entitled to costs if the other party's case was not well founded. The defendant contested this, arguing that there was no substantial question of principle involved in the appeal, and thus, no order for costs should be made.

The court considered the doctrine of the "moment of optimism" and determined that while it was a factor to be considered, it was not determinative. The court also noted that the parties were unable to agree on the costs, which was another factor to be taken into account. Ultimately, the court found that in the circumstances of this case, it was fair to make a cost order in favour of the plaintiff. The court did not find that there was a substantial question of principle involved in the appeal, but rather, that the plaintiff's success in the appeal warranted an order for costs.

The court ordered that the plaintiff be awarded costs of the appeal, to be paid by the defendant. The court noted that the amount of the costs was to be determined by the Registrar, taking into account the factors outlined in the court's judgment. The court did not make any further orders in relation to the costs.