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[2026] NSWCA 117
procedural. The notice of motion filed on 6 May 2026 was dismissed. The applicant was ordered to pay the costs of the first, second, third and fourth respondents.
The Court of Appeal rejected Mr Mohareb’s attempt to reopen its earlier refusal to grant leave to appeal. It said r 36.16 can correct a genuine oversight, but it is not a second opportunity to argue a case that has already been rejected. Having compared his complaints with the earlier reasons, the Court found that the relevant limitation, knowledge and summary-dismissal points had been considered. The motion was dismissed, and Mr Mohareb was ordered to pay the respondents’ costs.
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2,214 words · generated 07/10/2026
This judgment concerns a procedural application, not a fresh determination of the underlying claims. On 22 April 2026, the Court of Appeal dismissed Mr Mohareb’s amended summons seeking leave to appeal. The reasons for that decision were published as Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67. The present judgment identifies that earlier decision as the “Reasons” and says that it was unnecessary to repeat its factual background ([1]).
On 6 May 2026, Mr Mohareb filed a notice of motion seeking to set aside the Court’s 22 April orders under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). His stated grounds included that the Court had misunderstood the juridical character or scope of his case, failed to decide distinct issues raised by his appeal grounds, attributed positions or concessions to him that he had not advanced, and failed to address whether the proceeding was suitable for summary determination ([2]). The motion was determined on the papers after written submissions from Mr Mohareb and the respondents ([3]).
The Court organised its assessment around three groups of proposed appeal grounds. Grounds 2 to 11 related to the claim against Nine; grounds 12 to 17 concerned the claims against the State and the DPP; and grounds 18 and 19 concerned the Council ([12]). Mr Mohareb’s central complaint was structural: he said the Court had narrowed or reformulated his arguments and decided the leave application on a materially different basis from the one he had put forward ([11]).
The Court dismissed the motion. It ordered Mr Mohareb to pay the costs of all four respondents ([27]). The decision therefore resolves whether the earlier orders should be set aside; it does not itself determine the underlying claims or make a new ruling on the merits of the proposed appeal.
The Court accepted the legal possibility underlying Mr Mohareb’s application. If a court misunderstands a party’s case and, as a result, fails to deal with it, r 36.16 may be engaged. But the Court emphasised that the power is directed to oversight and inadvertence, not to correcting a deliberate decision merely because a party regards it as wrong ([4]).
The safeguards are demanding. The power is to be exercised “sparingly and with great caution”, having regard to the public interest in finality ([4]). The party alleging that the case was misunderstood must establish that allegation clearly on the facts ([4]). The Court also adopted the warning in Majak v Rose (No 5) about the limited purpose of the rule: it permits readily identifiable and readily rectifiable inadvertent errors to be corrected, but does not license repeated attempts to obtain a more favourable decision ([5]).
The applicant’s burden included accurately identifying the arguments originally advanced. An unsuccessful litigant cannot reformulate arguments on a reopening application and present the new formulation as proof that the Court misunderstood the original case ([6]). The Court described that burden as heavy and said it must be assessed by a fair reading of the reasons ([7]).
That fair-reading approach mattered because Mr Mohareb relied on the asserted absence of separate treatment of particular arguments. The Court relied on Power v Deputy Commissioner of Taxation (No 2) for the proposition that the absence of an express reference to a submission or authority does not itself show that the Court failed to consider it. Reasons must explain the decision sufficiently; they need not recite every argument ([7]). The Court also endorsed the proposition that courts may deal concisely with arguments and need not match the length or detail of a party’s submissions ([8]–[9]).
A further contextual point was that the earlier decision was a refusal of leave to appeal. The judgment explains that a leave decision is interlocutory and functions as a gateway to a full appeal hearing. In that setting, the reasons need to identify the core reasons for refusing leave, but ordinarily need not address every ground and argument in detail ([10]).
Applying those principles, the Court found that Mr Mohareb’s complaints did not show that his case had been misunderstood. For the claims against Nine, he argued that limitation and knowledge issues were contestable and therefore unsuitable for summary determination. The Court said the earlier reasons had dealt with those matters, including by considering assumptions favourable to him about the limitation period and submissions about when he acquired relevant knowledge ([14]).
For the State and DPP claims, the Court found that the earlier reasons had addressed the proposed grounds and relevant limitation issues. In particular, it said the earlier judgment had considered the argument about when Mr Mohareb knew the facts relevant to the claim concerning the prosecution of Mr Kelso. The present Court characterised the complaint as disagreement with the reasoning, rather than proof that the Court had failed to understand the case ([17]–[19]). It also found that the asserted broader course of conduct concerning the State did not materially change the limitation analysis on the facts Mr Mohareb himself advanced ([20]–[21]).
For the Council claim, the Court considered it appropriate to apply the reasoning it had given concerning corresponding claims against the State. The primary judge had found the claims against the Council to be statute barred and an abuse of process, and the earlier appeal reasons explained why no relevant error had been shown in the limitation analysis. The present Court considered that this reasoning adequately disclosed why the Council submission was rejected ([24]–[26]).
This judgment does not purport to establish a new test for reopening judgments. It applies principles drawn from earlier decisions, particularly Poulos (No 3), Majak (No 5), Dickson (No 2) and Power (No 2). Its contribution is a practical application of those principles to a motion alleging a repeated or structural misunderstanding across numerous proposed appeal grounds.
Before this decision, as described in the judgment, r 36.16 was available to address inadvertent errors or oversights, including a genuine misunderstanding of a party’s case that resulted in that case not being dealt with ([4]). The rule was constrained by the interests of finality and the need to avoid repeated litigation of already-decided issues ([4]–[6]). An applicant had to establish a clear connection between the alleged misunderstanding and the failure to determine the case actually advanced ([4], [7]).
The judgment reaffirms that silence is not equivalent to non-consideration. Reasons may be concise and may address connected arguments together if they disclose the substance of the Court’s reasoning ([7]–[9]). It also confirms the significance of procedural context: a refusal of leave to appeal does not call for the same breadth of reasoning as a full determination of an appeal ([10]).
After this decision, those principles are applied to the particular complaints in Mr Mohareb’s motion. The Court treated the earlier reasons as a whole and in context, rather than requiring a separate response to every submission. It found that the reasons addressed the substance of the limitation and knowledge arguments, and that applying common reasoning to related claims did not establish a misapprehension ([14], [16], [26]). The result is not a rule that every concise or grouped reason is sufficient. The judgment’s stated approach remains dependent on whether the substance of the argument can fairly be seen as dealt with.
At [4], the Court states that an alleged misunderstanding and failure to deal with a party’s case “must be clearly established on the facts”. In plain English, a party needs more than an assertion that the judgment got the argument wrong. The materials must show a real misunderstanding that caused the Court not to decide the case that was actually presented.
At [6], the Court says that a complaint about misapprehension must start from “an accurate characterisation of the submissions actually advanced”. This prevents a reopening application from introducing a sharpened or altered argument and treating its absence from the earlier reasons as proof of oversight.
At [7], the Court explains that a missing reference to a submission or cited case does not prove that the Court ignored it. The practical question is whether the reasons, read fairly and as a whole, show why the proceeding was decided. This also means that the argument’s length or the number of authorities cited does not, by itself, require an equally lengthy judicial response ([8]–[9]).
At [10], the Court sets the earlier refusal of leave in context. A leave decision is a gateway decision, not the final determination of the legal issues. The reasons should communicate the core basis for refusing leave, but need not answer every ground in detail.
The application of those principles is illustrated by [14]. The Court said Mr Mohareb’s arguments about the appropriateness of summary determination and the timing of his knowledge were subsumed within the earlier assessment of whether the limitation conclusions were untenable. In other words, the Court considered those matters addressed by the reasoning already given, even though it had not treated each as a separate issue in the form Mr Mohareb later advanced.
At [27], the Court concludes that no proper basis had been established to set aside the orders. That conclusion followed from its finding that the complaints showed dissatisfaction with the earlier reasoning, not a demonstrated failure to understand and deal with the case.
The judgment is relevant where a party seeks to reopen or set aside a judgment on the basis that the court misunderstood an argument or failed to consider it. It is particularly pertinent where the alleged oversight is said to recur across a number of grounds, or where the complaint is that the court used a narrower formulation than the party’s own.
The decision indicates that the analysis turns on several features: what was actually argued before the court; what the reasons say when read as a whole; whether the alleged misunderstanding led to a failure to decide the case advanced; and whether the complaint is genuinely about oversight rather than the correctness of a decision ([4], [6]–[7], [11]).
It also addresses circumstances where reasons treat related claims together. The Court considered compendious treatment permissible where the shared reasoning addressed the substance of the related arguments. For the Council claim, it regarded the reasoning concerning the State as logically applicable because the claims arose out of the same matters and the limitation analysis was common ([24]–[26]).
The judgment’s context is also important: the earlier decision refused leave to appeal. The Court relied on the limited function of a leave decision when explaining why its earlier reasons did not need to discuss every proposed ground at length ([10]). The decision should not be read as resolving what amount of reasons would be sufficient in every kind of final hearing or every procedural setting.
The supplied judgment does not discuss any later court’s treatment of Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117. It was decided on 22 June 2026, and the text provided contains no subsequent decisions applying, distinguishing or criticising it. It is therefore not possible, on this source alone, to describe how later courts have treated this judgment.
The authorities the Court itself discusses are earlier authorities, not later treatment of this case. They provide the doctrinal framework the Court applied: the limited purpose and cautious use of r 36.16, the burden on an applicant seeking reopening, the distinction between oversight and disagreement, and the adequacy of concise reasons ([4]–[10]). Any account of later judicial treatment would require later sources not included in the judgment supplied here.
The judgment does not set out an exhaustive test for when a court has “misapprehended” a party’s case. It states that the alleged failure must be clearly established and consequential, but its application is fact-specific ([4], [7]). The decision therefore leaves open how a court might assess a more discrete omission where the reasons do not otherwise show that the substance of the argument was considered.
The judgment also does not define the full boundary between permissible compendious reasoning and an impermissible failure to decide a distinct issue. It finds the grouped treatment appropriate in this case because the relevant limitation analysis was shared, and because the earlier reasons disclosed why the submissions were rejected ([14], [16], [26]). Different claims or materially different factual bases may require separate consideration, but this judgment does not decide that hypothetical question.
Another question is how the standard applies outside a leave-to-appeal context. The Court’s discussion of concise reasons expressly takes account of the interlocutory and gateway character of leave decisions ([10]). It does not decide whether the same degree of concision would be sufficient for every kind of final determination.
Finally, the judgment does not decide the underlying merits of the claims against Nine, the State, the DPP or the Council. It records the earlier Court’s treatment of limitation, knowledge and summary disposition only to determine whether a basis for reopening had been established. Its conclusions should be understood within that procedural scope.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117
Hearing dates: On the papers
Date of orders: 22 June 2026
Decision date: 22 June 2026
Before: Ball JA; Free JA
Decision: (1) The applicant’s notice of motion filed on 6 May 2026 is dismissed.
(2) The applicant is to pay the costs of the first, second, third and fourth respondents.
Catchwords: JUDGMENTS AND ORDERS — amending, varying and setting aside — application to set aside orders under UCPR, r 36.16 — no proper basis established
Legislation Cited: Limitation Act 1969 (NSW), s 50D
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111
Majak v Rose (No 5) [2017] NSWCA 238
Mohareb v Kelso (No 2) [2017] NSWCA 173
Mohareb v Palmer (No 3) [2021] NSWCA 39
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67
Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72
Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77
Category: Principal judgment
Parties: Nader Mohareb (Applicant | Cross Respondent)
Nine Entertainment Co Holdings Limited (First Respondent)
State of New South Wales (Second Respondent) Northern Beaches Council (Third Respondent) Director of Public Prosecutions (NSW) (Fourth Respondent | Cross Appellant)
Representation: Counsel:
L Alick (Solicitor Advocate) (First Respondent)
A Williams (Second and Fourth Respondents | Cross Appellant)
J Guihot (Third Respondent)
Solicitors:
Litigant in Person (Applicant | Cross Respondent) Nine Entertainment Co Holdings Limited (First Respondent)
Crown Solicitor’s Office (NSW) (Second and Fourth Respondents | Cross Appellant)
Moray & Agnew (Third Respondent)
File Number(s): 2025/173853
THE COURT**:** On 22 April 2026 the Court delivered judgment dismissing an amended summons seeking leave to appeal which had been filed by the applicant (Mr Mohareb) on 11 November 2025. Reasons for judgment were published on the same day: Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67 (Reasons). The background to the amended summons is set out in the Reasons and it is unnecessary for present purposes to repeat the background. Abbreviations used in the Reasons are adopted also in these reasons.
By notice of motion filed on 6 May 2026 Mr Mohareb seeks an order pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) setting aside the orders made by the Court on 22 April 2026. The notice of motion sets out the following grounds:
- The Court proceeded upon a material misapprehension of the Applicant's case, including as to the juridical character and scope of the case advanced.
- The Court Failed to determine one or more distinct issues expressly raised by the Applicant's grounds of appeal and supporting submissions.
- The judgment attributes to the Applicant positions, concessions or omissions not advanced, and determines the application on that basis.
- The judgment disposes of the application without engaging with the Applicant's material argument that the proceeding was not suitable for summary determination at the interlocutory stage.
- By reason of the matters above, the power under UCPR 36.16 is enlivened.
Procedural orders were made for the notice of motion to be dealt with on the papers and written submissions were filed by Mr Mohareb, the first respondent (Nine), the second and fourth respondents (the State and the DPP) and the third respondent (Council). The submissions filed by Mr Mohareb involve some refinement of the grounds that he relies upon. As explained further below, Mr Mohareb submits that in respect of each of the proposed grounds of appeal in his amended summons the Court proceeded upon a misapprehension of his case and failed to deal with the arguments that he in fact sought to rely upon.
As a matter of principle, if made good on the facts the argument advanced by Mr Mohareb would provide a legitimate basis to set aside orders made by the Court. If the Court has proceeded upon a misapprehension of a party’s case, and consequentially neglected to deal with the case advanced, the power in UCPR, r 36.16 may be engaged: Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 (Poulos (No 3)) at [7]; Mohareb v Kelso (No 2) [2017] NSWCA 173 at [5]. The power is thus available to deal with matters of oversight and inadvertence, which are to be distinguished from deliberate decisions which a party regards as incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 (Dickson (No 2)). However, the Court will not lightly reach the conclusion that it has misunderstood a party’s case. The power to set aside a judgment is to be exercised sparingly and with great caution, having regard to the public interest in maintaining the finality of litigation: Poulos (No 3) at [7]; Majak v Rose (No 5) [2017] NSWCA 238 (Majak (No 5)) at [13]. An allegation that a party’s case has been misunderstood and not dealt with must be clearly established on the facts in order to justify setting aside the Court’s judgment.
The guiding principles identified by the Court in Majak (No 5) at [12] warrant particular emphasis:
The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the “overriding purpose” of facilitating the “just, quick and cheap resolution of the real issues” between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.
As has been repeatedly emphasised in the authorities, an application for re-opening is not an occasion merely to re-agitate arguments that have been unsuccessful: see, for example, Dickson (No 2) at [4]; Mohareb v Palmer (No 3) [2021] NSWCA 39 at [19]; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6 per Mason CJ. Nor is it legitimate for an unsuccessful party to reformulate its arguments on a review application under the guise of arguing that there has been a misapprehension of the party’s case. Any contention that there has been a misapprehension of, and failure to deal with, the party’s case must proceed from an accurate characterisation of the submissions actually advanced.
Mr Mohareb bears the burden of showing that there has been a misapprehension of his case such as to justify a re-opening: Majak (No 5) at [19]. It is a heavy burden: Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 (Power (No 2)) at [3]. Discharge of the burden must be based on a fair assessment of the Court’s reasons. In Power (No 2*)* the Court at [5] explained the proper approach to be adopted in this regard:
The mere absence of a reference in reasons for judgment to a submission made by a party, or to cases cited by that party in support of the submission, does not mean that the Court has not given consideration to the submission. An intermediate appellate court is bound to give only such reasons as are required for a proper determination of the proceedings before it and to enable the parties, and, if appropriate, the High Court, to see clearly why the proceedings were decided in the way they were decided (see 260 Oxford Street Pty Limited v Premetis [2006] NSWCA 96 at [135]).
The elaboration and detail with which untenable arguments are presented, and the number of authorities which they cite, do not oblige a Court to respond in similar length and detail. Reasons that are concise rather than expansive are in many ways to be preferred.
No matter how elaborately or repetitively a party may choose to express an argument, a court is entitled to deal with the argument in a concise way, and to deal with arguments compendiously, where doing so enables the substance of the party’s case to be dealt with and the reasoning of the court to be disclosed.
When considering reasons that have been given for the refusal of leave to appeal, as in the present case, it must also be borne in mind that the Court in refusing leave is not required to give extensive reasons, as explained by Kirk and McHugh JJA in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [34]:
Deciding whether to grant leave to appeal is an interlocutory decision: Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1982) 149 CLR 147 at 152-153. It is not an appeal. It does not finally determine the legal issues at stake. The Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. In this context, in general, the Court need not give extensive reasons for dismissing an application for leave to appeal. They should be sufficient to articulate for the benefit of the parties and, if special leave is sought, the High Court, the core reasons why the Court was not persuaded to exercise its discretion to grant leave to appeal. They can be short. To require extensive reasons – eg addressing in detail all arguments made or grounds raised by an applicant – would be to defeat the very purpose of having a leave gateway: see eg La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2015] NSWCA 254 at [9]-[10].
Mr Mohareb does not allege that the Court fell into any isolated factual error. He argues instead that there was a recurring structural defect in the Court’s treatment of his arguments, in that the Court reformulated his arguments into narrower propositions than those in fact advanced by Mr Mohareb, with the result that the application was determined on a materially different basis from that relied on by Mr Mohareb. Whether or not that complaint has substance falls to be assessed by reference to the different parts of the Reasons.
As explained in the Reasons, Mr Mohareb sought leave to appeal on the basis of a draft notice of appeal which contained 20 proposed grounds of appeal. No ongoing independent issue arises in respect of the treatment of grounds 1 and 20. Grounds 2 to 11 concern the dismissal of a claim brought by Mr Mohareb against Nine. Grounds 12 to 17 concern the claims against the State and the DPP. Grounds 18 and 19 concern the claim against the Council. It is convenient to deal with Mr Mohareb’s application to set aside the judgment by reference to these three sets of grounds. This accords with the approach adopted by Mr Mohareb in his submissions.
Mr Mohareb submits that his case in relation to the dismissal of the claim against Nine raised the question of whether the limitation question was apt for summary determination. Mr Mohareb says that he argued that it was not, because there were contestable evaluative issues to be determined about the characterisation of the claim and the time at which the relevant knowledge was acquired. On the question of knowledge, Mr Mohareb says that his argument was that the question of whether he knew that the injury in question was caused by the legal fault now alleged was not so clear as to permit summary determination. He submits that, for the purposes of s 50D(1)(b) of the Limitation Act 1969 (NSW), there was a contestable issue about when he first knew or ought to have known of the fact that his injuries were caused by the fault of Nine.
There is no substance to the complaint that the Court misapprehended Mr Mohareb’s case. The points that Mr Mohareb now seeks to raise regarding the appropriateness of summary determination, and the time at which knowledge of relevant matters was acquired, were subsumed within the question of whether there was a proper basis for the primary judge to have concluded that the claim against Nine was untenable because of the applicable limitation periods. In its Reasons, at [38]-[44], the Court dealt with that question, including on assumptions favourable to Mr Mohareb about the applicable limitation period and by reference to submissions made about the knowledge held by Mr Mohareb at particular times. On the question of knowledge the Court was satisfied that the applicant was aware of the relevant times at or about the time that they occurred. On the Court’s analysis, even accepting the general principle about the restraint to be adopted in summary disposition of claims, the conclusions reached by the primary judge were correct and dispositive. Mr Mohareb may be dissatisfied with this reasoning, but as explained above that is beside the point on an application to set aside the Court’s judgment.
Mr Mohareb argues that his proposed ground 13, concerning a claim against the State, likewise raised questions about whether the outcome of the claim was so clear as to be apt for summary dismissal, and the Court neglected to address this and neglected to appreciate that there were contestable issues of classification bearing on the application of limitation periods.
The Court dealt with proposed ground 13 by reasoning that it fell to be determined by reference to the same issues that arose in relation to the claim against Nine: Reasons at [49]. As explained above, the analysis of the proposed claim against Nine subsumed questions about the appropriateness of summary dismissal and the application of limitation periods, which in turn raised questions of knowledge. There is no substance to the complaint that these matters were overlooked by the Court.
Proposed ground 14 concerned the allegation that NSW Police and the DPP breached duties that they owed to Mr Mohareb because of the way that they prosecuted Mr Kelso. The criminal proceeding in question was concluded in April 2020 when Mr Kelso was sentenced: Reasons at [11]. The Court found, at [50]-[51], that it was plain from Mr Mohareb’s own submissions that he had knowledge of the relevant facts by 17 April 2020, which was more than three years before the commencement of the 2024 Proceedings. As the Court was satisfied that the claim was one for personal injury, it was also satisfied that the primary judge had been correct to conclude that it was statute barred.
In relation to the Court’s treatment of ground 14, Mr Mohareb complains that the Court wrongly characterised him as having made a concession that he had the requisite knowledge of facts about his claim, for the purposes of s 50D(1)(b) of the Limitation Act, as of April 2020. He also complains that there was a contestable issue about when he acquired the relevant knowledge, which made the matter inapt for summary determination. He emphasises that his submissions had been directed to showing that there was “material factual misapprehension” by the primary judge and “evaluative prematurity affecting the substantive grounds, including limitation, discoverability and knowledge”.
This is self-evidently a complaint about the correctness of the Court’s reasoning, and not a demonstrated failure to understand and deal with Mr Mohareb’s case in respect of ground 14. The Court was plainly cognisant of Mr Mohareb’s submissions that the primary judge had made an erroneous or premature finding about the applicable limitation period, having regard to the facts about when Mr Mohareb acquired knowledge of the facts relevant to the claim brought against NSW Police and the DPP. The Court did not accept those submissions.
In relation to ground 15, Mr Mohareb complains that the Court dealt compendiously with distinct claims referred to in ground 15, in such a way as to reveal a misapprehension of his case. In particular, he says that in relation to the claim sought to be brought against the State arising from vexatious litigant proceedings brought by the Attorney General he was not seeking to rely only on the 2016 proceedings (as suggested by the Court at Reasons [54]), but was also relying upon a “course of conduct extending beyond 2016”, culminating in December 2020.
Grounds 18 and 19 of the draft notice of appeal concerned the claim against the Council. The Court was satisfied that as the claim against the Council arose out of the same facts as the claim against the State, as with the latter claims the primary judge was correct to conclude that the claim was either statute barred or an abuse of process.
Mr Mohareb argues that in relation to these grounds, as with the equivalent grounds concerning the State, there was a failure to appreciate his submission that the issues were inapt to be determined on a summary basis because there were matters that were “factually and procedurally contestable”. Mr Mohareb asserts that the Court merely “treated duplication or prior procedural history as determinative”.
These submissions by Mr Mohareb do not engage with the reasoning of the Court. The primary judge had found that the claims sought to be maintained against the Council, like the equivalent claims brought against the State arising from the same matters, were both statute barred and an abuse of process: Reasons at [28]-[30]. In relation to the first dispositive question of the applicable limitation period, the primary judge had concluded that it was clear that in April 2021 (when he filed a notice of motion in the 2018 Proceedings) Mr Mohareb was aware of all of the relevant facts, for the purposes of s 50D(1) of the Limitation Act, relevant to the claim sought to be brought more than three years later against the State and the Council: Reasons at [28]. Having analysed why there was no relevant error demonstrated in the reasoning of the primary judge as it applied to the claims against the State, it was logical and appropriate to note that the same conclusion applied for the claim against the Council. No more elaborate reasoning was required in order to demonstrate that Mr Mohareb’s submission had been received, but rejected.
No proper basis has been established for setting aside the orders of the Court made on 22 April 2026. The orders of the Court are:
The applicant’s notice of motion filed on 6 May 2026 is dismissed.
The applicant is to pay the costs of the first, second, third and fourth respondents.
**********
Mohareb
Nine Entertainment Co Holdings Limited (No 2)
[2026] NSWCA 67
(1993) 176 CLR 300
(1982) 149 CLR 147
The notice of motion filed on 6 May 2026 was dismissed. The applicant was ordered to pay the costs of the first, second, third and fourth respondents.
These complaints can have no material bearing on the conclusions reached in the Reasons. On Mr Mohareb’s own submission the facts relied upon occurred up to 2020, which was more than three years before the commencement of the 2024 proceedings. It is not suggested that he was ignorant of the events that occurred in 2020. The submission was therefore not one that required separate attention as demonstrating error in the reasoning of the primary judge that the three year limitation period had expired.
In relation to grounds 16 and 17, Mr Mohareb says that he had sought to defend paragraphs 21 and 22 of the amended statement of claim as particulars of a broader campaign of intimidation and harassment, on the basis that this was relevant to the knowledge and conduct of NSW Police and Council. The contextual character of these matters, according to Mr Mohareb, was relied on to show that these were not issues apt to be determined on a summary basis.
The point goes nowhere in circumstances where, on Mr Mohareb’s own characterisation, the aspects of the pleading to which grounds 16 and 17 relate are to be understood as part of the context for understanding other pleaded causes of action. To the extent that the causes of action have been summarily dismissed, the particulars fall away. To the extent that the particulars have any ongoing relevance to the claim for malicious prosecution (against NSW Police and the DPP) and/or the claim for tortious wrongdoing (against the DPP), Mr Mohareb has leave to re-plead and if there is any proper basis for such matters to feature in a re-pleaded claim that is a matter that is yet to be considered. For present purposes, there is no material aspect of the submissions that was overlooked by the Court bearing on the questions that it was determining.