Wu v Ling (No 4)

The Supreme Court of New South Wales, Court of Appeal, considered an application by the respondent to discharge a stay of proceedings previously ordered on 23 December 2016. The stay had been granted pending an application for special leave to appeal to the High Court. The applicant, who had sought the original stay, had failed to prosecute their application for special leave expeditiously.

The central legal issue before the Court of Appeal was whether the stay of proceedings should be lifted due to the applicant's failure to diligently pursue their special leave application. This involved an assessment of whether the conditions upon which the stay was granted had been met or, alternatively, whether the applicant's conduct warranted the discharge of the stay.

Ward JA reasoned that the purpose of a stay pending a special leave application is to preserve the status quo for a limited period to allow the applicant to pursue their High Court challenge. Where an applicant fails to act with reasonable expedition in filing and prosecuting such an application, they are not entitled to the continued benefit of the stay. The Court applied the principle that a party seeking to maintain a stay must demonstrate a commitment to pursuing the underlying application with due diligence.

The Court ordered that the application of the respondent for the discharge of the stay be granted, and that the appellant pay the costs of the motion filed on 3 March 2017.