Declaratory relief refused on lawfulness of using 'facial plastic surgeon' title in advertising
The Federal Court recently dismissed an application by the Australian Society of Otolaryngology Head and Neck Surgery Limited (ASOHNS) and two of its members seeking declarations on the use of the title “Facial Plastic Surgeon” in advertising.
The ASOHNS was the national representative organisation for specialist otolaryngology head and neck surgeons, also known as ear, nose, and throat surgeons. The ASOHNS, along with two registered otolaryngologists, filed the originating application in this case against the regulation agency.
The respondent in this case was the Australian Health Practitioner Regulation Agency, which was responsible for regulating health practitioners under the Health Practitioner Regulation National Law and for prosecuting offences of the national law before the courts.
The regulation agency previously advised one of the applicant otolaryngologists that using the title “Facial Plastic Surgeon” could be misleading and could contravene provisions of the national law, specifically ss. 115(1), 118(1), 119(1), and 133(1). These provisions governed the use of specialist titles and prohibited false, misleading, or deceptive advertising by health practitioners.
The applicants challenged the regulation agency’s interpretation of the Health Practitioner Regulation National Law. The applicants wanted to use the “Facial Plastic Surgeon” or “Otolaryngologist and Facial Plastic Surgeon” as titles in their advertising.
The applicants alleged that these titles accurately reflected their qualifications and expertise, particularly given the compulsory facial plastics module included in the otolaryngology head and neck surgery curriculum.
The applicants asked the court to declare that a person registered as an otolaryngologist but not registered as a specialist plastic surgeon could use the title “Facial Plastic Surgeon” in advertising without breaching the national law’s provisions.
In Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency, [2024] FCA 995, the Federal Court dismissed the application and ordered the ASOHNS to pay the costs of the regulation agency.
The court started off by addressing the issue of whether it had jurisdiction to grant the declarations sought by the applicants. The court ruled that the request for declarations involved a hypothetical and advisory matter, not a justiciable controversy. Specifically, the court held that the applicants were seeking an advisory opinion and not the resolution of a concrete legal dispute.
Even if jurisdiction had existed, the court said that it would have exercised its discretion to refuse to grant the declarations requested by the applicants. The court identified numerous factors that influenced it to deny declaratory relief.
First, the court noted that the dispute lacked any specific factual context, given that the applicants framed the declarations in general and abstract terms applicable to all otolaryngologists instead of focusing on the individual circumstances of the two otolaryngologists and the particular situations when the titles would be used.
Second, the court found that granting declaratory relief could lead to a risk of inconsistency. There was a possibility that issuing the civil declarations could conflict with future criminal or disciplinary proceedings and could negatively impact public confidence in the judicial system, the court said.
Third, the court questioned the utility of granting the declarations. Issuing the declarations could give false comfort to other otolaryngologists and other health practitioners and could mislead them into believing that their use of similar titles would be lawful despite differing circumstances, the court explained.
