Hraiche v State of New South Wales

The case of Hraiche v State of New South Wales involved the applicant, a former prisoner, seeking leave to commence civil proceedings nunc pro tunc against the State of New South Wales. The applicant contended that he had been unlawfully denied access to legal counsel during his incarceration. The matter was heard in the Supreme Court of New South Wales, which was required to determine whether the applicant could commence civil proceedings outside the limitation period due to exceptional circumstances.

The primary legal issue before the court was whether the applicant could establish a prima facie case for relief, considering the limitations on commencing civil proceedings nunc pro tunc. The court had to consider whether the applicant's allegations, supported by expert evidence, were sufficient to form a broad impression that the applicant had prospects of success. This included an assessment of the applicant's ability to establish a breach of his legal rights and whether there were exceptional circumstances justifying the late commencement of proceedings.

The court found that the applicant had presented a prima facie case supported by expert evidence, which demonstrated a plausible claim of legal malpractice and a denial of access to legal counsel. The expert evidence detailed the systemic issues within the prison system that led to the applicant's alleged denial of access to legal representation. The court was persuaded that the applicant's allegations, if proven, could result in a successful outcome. Consequently, the court granted the application for leave to commence the civil proceedings nunc pro tunc, recognising the exceptional circumstances presented by the applicant.

The court ordered that the applicant be granted leave to commence the civil proceedings nunc pro tunc, with directions for the respondent to file an appearance to defend within 28 days of the order. The applicant was also granted leave to amend the statement of claim to include the allegations of legal malpractice and the denial of access to legal counsel. The case was set for case management to determine the appropriate timeline for the proceedings.