Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency

In the case of Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency, the Australian Society of Otolaryngology Head and Neck Surgery (ASOHNS) sought declaratory relief from the Federal Court, arguing that certain titles could be used without contravening specific sections of the Health Practitioner Regulation National Law as applied by the Health Practitioner Regulation National Law (ACT) Act 2010 (ACT). The court was asked to determine whether it had jurisdiction to grant the declarations sought and whether it should decline to grant certain declarations in the exercise of its discretion. The court also considered whether it should provide obiter consideration of the declarations in respect of which it had jurisdiction.

The primary issue before the court was whether the Guidelines Declarations sought by ASOHNS gave rise to a "matter" for the purposes of Chapter III of the Constitution. The court found that the Guidelines Declarations sought an advisory opinion, which the Court lacked jurisdiction to grant. The court also considered whether it should decline to grant the Chow/Makeham Declarations in the exercise of its discretion. The court found that the Chow/Makeham Declarations should be refused in the exercise of discretion due to considerations such as the lack of a sufficient factual foundation, potential to mislead, and potential to create inconsistencies between civil and criminal/disciplinary decisions.

The court declined to provide obiter consideration of the substantive issues as it would potentially give rise to the same kinds of difficulties as the denial of the Chow/Makeham Declarations. The court dismissed the further amended originating application filed on 16 June 2023, and ordered that the first applicant pay the respondent's costs as agreed or taxed. The parties, including the interveners, were given the opportunity to be heard separately on costs, and a timetable was established for short submissions on costs if agreement could not be reached. The date for filing any notice of appeal was also fixed as 28 days after final orders were made in respect of costs.

In conclusion, the court found that it did not have jurisdiction to grant the Guidelines Declarations sought by ASOHNS, and declined to grant the Chow/Makeham Declarations in the exercise of its discretion. The court also declined to provide obiter consideration of the substantive issues. The court dismissed the application and ordered the first applicant to pay the respondent's costs as agreed or taxed. The parties and interveners were given the opportunity to be heard separately on costs, and a timetable was established for short submissions on costs if agreement could not be reached. The date for filing any notice of appeal was fixed as 28 days after final orders were made in respect of costs.