Spencer v NSW Minister for Climate Change and the Environment

The applicant, Spencer, sought to have hearing dates for an appeal in the NSW Court of Appeal vacated. The appeal concerned administrative acts taken by the NSW Minister for Climate Change and the Environment. Spencer's application was prompted by a pending special leave application in the High Court of Australia, which sought to challenge the constitutional validity of the legislation under which the Minister's administrative acts were taken.

The central legal issue before McColl JA was whether the hearing dates for the appeal in the Court of Appeal should be adjourned pending the determination of the special leave application in the High Court. This required consideration of the principles governing the adjournment of proceedings when a superior court is being asked to consider the validity of the legislation underpinning the subject matter of the lower court proceedings.

McColl JA reasoned that it was appropriate to adjourn the appeal. The potential for the High Court to find the relevant legislation invalid meant that the appeal might become entirely academic. Accordingly, it was more efficient and sensible to await the outcome of the High Court proceedings before proceeding with the appeal in the Court of Appeal. The court ordered that the appeal be adjourned to 1 September 2010 before the Registrar of the Court of Appeal and that the applicant pay the respondents' costs thrown away by the adjourned hearing.