//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 167
respondent. The notice of motion was dismissed with costs, and the matter was referred to the Registrar for listing before a three-judge bench to consider whether the Court should make an order of its own...
5 cited instruments linked from this judgment.
Mr Mohareb made a second application asking the Court of Appeal to reconsider its decision on his first application to reopen an earlier judgment. The Court said the second application was trying to have it decide again something it had already decided, and was therefore an abuse of process. It dismissed the motion with costs. Separately, it sent the matter back to the Registrar for a three-judge bench to consider whether to examine a possible order under the Vexatious Proceedings Act. The Court did not make that order.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,113 words · generated 08/10/2026
This judgment concerns a procedural sequence in the New South Wales Court of Appeal, rather than the underlying dispute about events in 2016 and 2017. The Court gives only a short account of that background. It says that Mr Mohareb had commenced proceedings in 2017 and 2018 concerning those events, and that a later District Court proceeding commenced in 2024 related to them. The 2017 proceeding was eventually dismissed after he did not provide security for the defendants’ costs, while the 2018 proceeding remained undetermined at the time described in the judgment [1]. The Court says the issues raised by the original application were complicated but did not need to be repeated in this decision [1].
On 22 April 2026, the Court dismissed Mr Mohareb’s application for leave to appeal against interlocutory orders made by the District Court on 10 April 2025 [1]. Mr Mohareb then filed a notice of motion under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), seeking to set aside the Court’s 22 April orders. That first motion alleged, among other things, that the Court had misunderstood his case, failed to determine issues, attributed positions to him that he had not taken, and failed to engage with an argument against summary determination [2]. The Court dismissed that motion on 22 June 2026 and gave reasons in Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117 [3].
The application decided here was a further motion under r 36.16, filed on 6 July 2026. It asked the Court to reconsider its decision in No 2. Its sole stated ground was that the judgment had proceeded on “one or more material misapprehensions concerning the complaints advanced on the appeal” [4]. No supporting material accompanied the motion [5].
The Registrar directed Mr Mohareb to file submissions explaining why the motion was not an abuse of process. He did not comply by the first deadline, but the time was extended, and he filed one page of submissions on 31 July 2026 [6]–[8]. The Court observed that those submissions did not explain why the current application was not abusive and did not explain the asserted misapprehension in the decision on the first reopening application [8].
The Court dismissed the motion with costs [10]. It also referred the matter back to the Registrar for listing before a three-judge bench to consider whether the Court should, of its own motion, make an order under s 8 of the Vexatious Proceedings Act 2008 (NSW) [11]. That was a direction for further consideration, not an order declaring Mr Mohareb a vexatious litigant.
The operative reasoning is in paragraph 9. The Court read the stated ground of the second motion as seeking reconsideration of the decision about the complaints advanced on the appeal. It noted that the Court had already considered those complaints in deciding the first r 36.16 motion. It concluded that the new motion was “asking the Court, in effect, to determine what it has already determined” and characterised that as “clearly an abuse of process” [9].
The reasoning is short and focused on the function of the new motion. The Court did not undertake a fresh examination of whether its earlier reasoning was correct. Nor did it reassess the merits of the original leave application. Instead, it compared the relief sought and the stated ground in the new motion with the earlier decision in No 2. The central problem, as the Court saw it, was that the further motion sought another determination of matters already determined.
The absence of supporting material is part of the procedural context [5]. The Court also recorded that the submissions filed after the Registrar’s directions did not address the question they were required to address: why the motion was not an abuse of process [8]. Although those matters informed the account of the proceeding, paragraph 9 identifies the repeated attempt to obtain reconsideration as the reason the Court held the application abusive.
The judgment does not reproduce or formulate a comprehensive legal test for reopening an appellate judgment under r 36.16. It says that the relevant principles had been set out in the reasons dismissing the first motion, No 2 [3]. Those principles are not restated in this judgment, so their precise content cannot be extracted from this decision alone. The holding here is narrower: on the terms and procedural history of this particular further motion, the Court considered it an abuse of process.
The Court’s treatment of Mr Mohareb’s submissions is also limited. They referred to the presumption of innocence and due process, his earlier similar motion, his self-represented status, and the care he said he had taken in preparing the application [8]. The Court did not separately analyse those propositions. It instead returned to the single ground in the notice of motion and concluded that it sought to revisit an issue already decided [9].
The judgment presents itself as an application of existing procedure, not as a reformulation of the law. It identifies UCPR r 36.16 as the procedural basis for both reopening motions and points to No 2 as the source of the relevant principles [2]–[4]. It does not set out the wording of r 36.16, describe every circumstance in which it may be used, or state a new general test for abuse of process.
Before this decision, the procedural history already included a dismissed application for leave to appeal and a dismissed first motion to set aside the resulting orders [1]–[3]. This judgment adds that a further motion seeking reconsideration of the dismissal of the first reopening motion may be dismissed as abusive where, in substance, it asks the Court to decide again matters it has already determined [9]–[10].
That is a fact-sensitive statement in the context of this case. It should not be expanded into a proposition that every second application under r 36.16 is necessarily abusive. The Court’s stated reasoning depends on what this particular motion sought and the fact that the relevant complaints had already been considered. The judgment does not discuss possible differences that might arise if a later motion were based on a genuinely different ground or supported by material not previously before the Court.
The reference to s 8 of the Vexatious Proceedings Act is a separate procedural development. The Court did not decide whether the statutory power’s requirements were met. It directed the matter to be listed before a three-judge bench so that the Court could consider whether it should act of its own motion [11]. As a result, the judgment does not establish that Mr Mohareb was a vexatious litigant or that an order under s 8 was warranted.
At [3], the Court says that its earlier reasons in No 2 had “set out the relevant principles applicable to an application under UCPR r 36.16” and explained why the grounds of the first motion had not been made out. In plain English, the Court treated the earlier decision as having already addressed the first request to reopen the 22 April decision. This judgment relies on that procedural history rather than repeating the earlier analysis.
At [4], the second motion sought an order that the judgment and orders in No 2 “be reconsidered”. Its only ground alleged “one or more material misapprehensions” about the complaints advanced on the appeal. In plain English, the application did not identify a separate decision or a new issue for determination. It asked the Court to reconsider its handling of the complaints in the earlier reopening proceeding.
At [8], the Court records that the applicant’s submissions did not explain why the current motion was not an abuse of process or why the Court had misapprehended his case in No 2. This explains why the Court regarded the required response to the Registrar’s directions as missing. The judgment does not say that self-representation itself was a reason for dismissal.
The central passage is at [9]: “That is clearly an abuse of process because it is asking the Court, in effect, to determine what it has already determined.” In plain English, the Court considered the second reopening motion repetitive in substance. It was not enough to restate dissatisfaction with how the Court had dealt with the appeal complaints when those complaints had already been considered in the earlier r 36.16 proceeding.
At [11], the Court says the matter should return to the Registrar for listing before three judges “to consider whether” an order should be made under s 8. The words “to consider whether” matter. They show that the Court initiated a further consideration, rather than making a vexatious-proceedings order in this judgment.
The fact pattern directly addressed is a sequence in which a party files a further r 36.16 motion seeking reconsideration of a decision dismissing an earlier r 36.16 motion, and the new motion’s stated ground again concerns alleged misapprehensions about complaints already considered. The Court treated that repetition as asking it to determine again what it had already determined [4], [9].
The procedural circumstances included a motion unsupported by accompanying material [5], followed by submissions that did not address why the motion was not abusive or provide an explanation of the alleged misapprehension [8]. Those details may be relevant when comparing other procedural histories, but the judgment’s express rationale is the repeated request for determination, not a general rule that an unsupported motion is always an abuse.
The decision should be distinguished from a ruling on the merits of the original underlying claims. The Court did not decide the truth of the underlying allegations, determine the unresolved 2018 proceeding, or re-evaluate the District Court’s interlocutory orders. It dealt with whether the new reconsideration motion should proceed.
The judgment does not resolve how a court should treat a later application based on materially different grounds, genuinely new supporting material, or a different kind of procedural defect. Nor does it decide the full boundaries of r 36.16. Those questions require attention to the text of the rule and the earlier reasons in No 2, which this judgment references but does not reproduce.
The judgment contains no account of later courts considering or applying this decision. Its date is 21 August 2026, and the supplied text reports only the Court’s own decision and its references to two earlier judgments: Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67 and Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117 [1], [3].
The Court refers to No 2 as the decision that dismissed the first r 36.16 motion and explained the applicable principles [3]. It refers to the earlier leave decision for the background to the procedural history [1]. The present judgment does not say that those earlier decisions established the precise abuse-of-process proposition in paragraph 9; that proposition is stated in this judgment in relation to the further motion before it.
Accordingly, no later treatment can be described from the supplied judgment text. The judgment also does not discuss whether another court has followed, distinguished, or questioned its reasoning. Any assessment of later treatment would require sources beyond the document provided.
The judgment leaves the detailed content of the r 36.16 principles to the reasons in No 2. It does not state the full threshold for reopening an appellate judgment, explain all relevant exceptions, or reproduce the earlier court’s analysis of the first motion [3]. Those matters cannot be resolved from this judgment alone.
It also does not decide whether every repeat r 36.16 application is an abuse of process. The reasoning concerns a further motion whose stated ground asked the Court to reconsider complaints that had already been addressed. Whether a different application would be treated similarly would depend on its grounds, supporting material, procedural history, and the applicable principles.
The referral under s 8 raises a separate unresolved question. A three-judge bench was to consider whether the Court should make an order of its own motion [11]. This decision does not set out the statutory criteria, determine whether they were satisfied, or state what outcome followed the referral.
Finally, the judgment does not decide the merits of the underlying disputes or the remaining proceeding commenced in 2018. Its scope is confined to the second reconsideration motion, its dismissal with costs, and the referral for further consideration.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
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 3) [2026] NSWCA 167
Hearing dates: On the papers
Date of orders: 21 August 2026
Decision date: 21 August 2026
Before: Ball JA; Free JA
Decision: Notice of motion be dismissed with costs
Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – second application to set aside orders under UCPR r 36.16 – no proper basis established – application clearly an abuse of process
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 36.16
Vexatious Proceedings Act 2008 (NSW) s 8
Cases Cited: Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67
Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117
Category: Consequential orders
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)
M Brothers (Solicitor, Third Respondent)
Solicitors:
Litigant in Person (Applicant | Cross Respondent) Nine Entertainment Co Holdings Limited (First Respondent)
Mills Oakley (Third Respondent)
File Number(s): 2025/173853
Publication restriction: Nil
THE COURT: On 22 April 2026, the Court dismissed an application brought by the applicant, Mr Mohareb, for leave to appeal against interlocutory orders made by the District Court of NSW on 10 April 2025: see Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67. The effect of the orders made by the District Court was to prevent Mr Mohareb from advancing claims against Nine Entertainment Co Holdings Limited, the State of New South Wales and Northern Beaches Council in proceedings commenced in the District Court in 2024 which related to events that occurred in 2016 and 2017 and which are the subject of proceedings that Mr Mohareb commenced in 2017 and 2018. The proceedings commenced in 2017 were eventually dismissed after Mr Mohareb failed to provide security for the defendants’ costs. The proceedings commenced in 2018 are yet to be determined. The issues raised by Mr Mohareb’s original application are complicated. They are explained in the judgment of the Court dismissing that application. It is not necessary to repeat them here.
By a notice of motion filed on 6 May 2026, Mr Mohareb sought 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 set 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.
The Court dismissed that notice of motion on 22 June 2026 and gave reasons for doing so: see Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117. In those reasons, the Court set out the relevant principles applicable to an application under UCPR r 36.16 and explained why none of the grounds identified in Mr Mohareb’s motion had been made out.
Mr Mohareb has filed a further notice of motion (on 6 July 2026) again pursuant to UCPR r 36.16. He seeks the following orders:
- Pursuant to rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), that the judgment and orders made by the Court of Appeal in Mohareb v Nine Entertainment Co Holdings Limited (No 2) & Ors [2026] NSWCA 117 be reconsidered.
- Such further or other orders as the Court considers appropriate.
The only ground given in support of the notice of motion is:
The Applicant contends that the judgment proceeded upon one or more material misapprehensions concerning the complaints advanced on the appeal.
The notice of motion was not accompanied by any supporting material.
On 10 July 2026, the Registrar made the following orders:
- DIRECTS the Applicant to file and serve by 17 July 2026, Written Submissions not exceeding one (1) page on why the Notice of Motion filed 6 July 2026 (“Motion”) is not an abuse of process and apt to be dismissed on that basis.
- DIRECTS the Respondents to file and serve any Written Submissions not exceeding one (1) page by 24 July 2026. Respondents to notify the Registrar if they do not intend to file and serve Written Submissions on the Motion.
3. DIRECTS the listing on 27 July 2026 at 9:30 AM be vacated if there is compliance with orders 1 and 2 above, noting the Motion will be determined on the papers.
Mr Mohareb did not comply with order 1 and on 27 July 2026, the Registrar extended the time for compliance with that order until 31 July 2026.
On 31 July 2026, Mr Mohareb filed written submissions of one page, as required by the amended directions. Mr Mohareb did not seek to explain why the current application was not an abuse of process or why he maintained that the Court had proceeded on a material misapprehension of Mr Mohareb’s case on his application to reopen its earlier judgment. Instead, after referring to the initial directions made by the Registrar, the submissions say, among other things:
My response [to the original directions made by the Registrar] was that I opposed those orders on the basis that, in the Australian justice system, when an allegation is made against someone, to the effect that they had committed some sort of offense [sic] – and even when that offence is of the most heinous kind – that person is presumed innocent until proven guilty and before they can be ordered to defend against such accusation, due process requires the relevant authority, making the allegation, to first inform the accused of what the lawful basis of that allegation is, and second, it puts the onus on the relevant authority to prove the allegation it is making and not on the accused to disprove it. Pursuant to which, I requested that I, at least, be told – so that I can address it – what the lawful basis is, for alleging that the filing of this Notice of Motion constituted an abuse of process. In addition, I also pointed to the fact that, around 2022, I had filed a similar motion which was determined on its merits, with no one alleging that it was an abuse of process.
…
In further support to the above, I point to the fact that I am a self-represented litigant who has already been the subject of two attempts, by the Attorney General, to have me declared a vexatious litigant. So, before I took this step, I was fully aware of the fact that the filing of such a motion was not going to be looked upon favourably. So, I did not take this step lightly. Before filing this motion, I spent an inordinate amount of time and effort to ensure, as much as humanly possible, that it is strictly compliant with the criteria set by the relevant authorities such as Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 at [7] and Mohareb v Kelso (No 2) [2017] NSWCA 173 at [5], and to ensure that I would be able to demonstrate that, even after my first r 36.16 Notice of Motion, the first two judgments, NSWCA 67 and NSWCA 117, are still, “affected by some relevant irregularity, or by a misapprehension of law or fact, such … that the court misapprehended a party’s evidence or submissions”.
Notwithstanding what Mr Mohareb says in his submissions, it is apparent from the one ground identified in the notice of motion filed on 6 July 2026 that he is asking the Court to reconsider its decision “concerning the complaints advanced on the appeal” in circumstances where it has already done so and dismissed the application. That is clearly an abuse of process because it is asking the Court, in effect, to determine what it has already determined.
For those reasons, the notice of motion must be dismissed with costs.
Having regard to the history of the matters as recorded in the Court’s earlier judgments, it is appropriate to refer the matter back to the Registrar so that it can be listed before a bench of three judges to consider whether the Court of its own motion should make an order against Mr Mohareb under s 8 of the Vexatious Proceedings Act 2008 (NSW).
**********
typographical error on coversheet
Typographical error in date on coversheet
Mohareb
Nine Entertainment Co Holdings Limited (No 3)
The notice of motion was dismissed with costs, and the matter was referred to the Registrar for listing before a three-judge bench to consider whether the Court should make an order of its own motion under s 8 of the Vexatious Proceedings Act 2008 (NSW).