Background
Nader Mohareb sought leave to appeal from interlocutory orders of the District Court of New South Wales that prevented him from advancing claims against Nine Entertainment Co Holdings Limited, the State of New South Wales and Northern Beaches Council in proceedings concerning events from 2016 and 2017. The Court of Appeal dismissed his leave application in Mohareb v Nine Entertainment Co Holdings Limited [2026] NSWCA 67.
Mohareb then applied under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) to set aside the Court of Appeal’s orders, alleging that the Court had misunderstood his case and failed to address certain arguments. The Court dismissed that application in Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117. On 6 July 2026, Mohareb filed another r 36.16 motion, this time seeking reconsideration of the No 2 judgment on the ground that the Court had materially misunderstood the complaints advanced on appeal.
The new motion contained no supporting material. After the Registrar directed Mohareb to explain why it was not an abuse of process, his one-page submissions did not identify the asserted misapprehension or explain why the application was not abusive. Instead, he challenged the premise that he should bear the burden of addressing abuse of process and stated that he had attempted to comply with authorities governing reopening applications.
The Court’s Holding
The Court of Appeal held that the second reopening application was clearly an abuse of process. The sole ground showed that Mohareb was asking the Court to reconsider complaints from the appeal even though it had already considered and rejected his earlier application to reopen the appeal judgment.
Because the motion effectively asked the Court to determine again what it had already determined, the Court dismissed it with costs. In light of the litigation history recorded in its earlier judgments, the Court also referred the matter to the Registrar for listing before a three-judge bench to consider whether the Court should, on its own motion, make an order against Mohareb under s 8 of the Vexatious Proceedings Act 2008 (NSW).
Key Takeaways
- Rule 36.16 does not permit a party to repeatedly seek reconsideration of issues that the Court has already determined.
- A reopening motion must identify a proper basis for relief, such as a relevant irregularity or material misapprehension; merely repeating that a misapprehension occurred is insufficient.
- Repeated attempts to relitigate concluded issues may constitute an abuse of process and may prompt consideration of orders under vexatious-proceedings legislation.
Why It Matters
The decision underscores the finality of appellate determinations and the limited role of applications to set aside or vary orders under r 36.16. That procedure is not an additional avenue of appeal or a means of repeatedly presenting complaints that have already been rejected.
It also illustrates a potential consequence of persistent, repetitive applications: beyond dismissal with costs, the Court may initiate consideration of restrictions under the Vexatious Proceedings Act, although no such order was made in this judgment.