Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency [2024] FCA 995

Federal Court of Australia

Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency [2024] FCA 995 File number(s): NSD 720 of 2022

Judgment of: PERRY J

Date of judgment: 30 August 2024

Catchwords: PRACTICE AND PROCEDURE – whether the Court has jurisdiction to grant the declaratory relief sought – whether there is a "matter" for the purposes of Ch III of the Constitution – declarations sought that a that a registered "specialist otolaryngologist - head and neck surgeon", who is not a registered "specialist plastic surgeon", would not contravene ss 115(1), 118(1), 119(1) and 133(1) (relevant provisions) of the Health Practitioner Regulation National Law as applied by the Health Practitioner Regulation National Law (ACT) Act 2010 (ACT) merely by describing themselves using the title "facial plastic surgeon" after "otolaryngologist" in accordance with advertising guidelines proposed by the first applicant – declarations seek an advisory opinion – Held: no jurisdiction PRACTICE AND PROCEDURE – whether the Court in the exercise of discretion should decline to grant the remaining declarations sought – declarations sought that the second and third applicants, who are registered otolaryngologists, would not contravene the relevant provisions of the National Law merely by describing themselves as "otolaryngologist and facial plastic surgeon" or "otolaryngologist and facial plastic and reconstructive surgeon" – dispute in respect of ss 115(1), 118(1) and 119(1) is hypothetical – fact specific nature of the relevant provisions – relevant provisions create criminal offences or may result in the imposition of a pecuniary penalty or disciplinary proceedings – declarations would create the potential for real or apparent inconsistencies between civil decisions, and criminal and disciplinary decisions – Held: remaining declarations refused in the exercise of discretion PRACTICE AND PROCEDURE – whether the Court should provide obiter consideration of declarations in respect of which it has jurisdiction – where obiter consideration would give rise to the same vices sought to be avoided in declining to grant relief