Federal Court orders interveners to pay costs in medical title dispute

The applicants incurred unnecessary costs preparing to counter inadmissible evidence: court

Federal Court orders interveners to pay costs in medical title dispute

The Federal Court has ruled that the Australasian Society of Aesthetic Plastic Surgeons (ASAPS) and its president must pay the costs incurred by the applicants in opposing their attempt to introduce evidence in a dispute over medical titles.

The court rejected ASAPS’ argument that no costs order should be made against them and denied their application to recover their own legal costs.

The case followed the court’s earlier decision in Australian Society of Otolaryngology Head and Neck Surgery Ltd v Australian Health Practitioner Regulation Agency [2024] FCA 995, which addressed issues surrounding the use of the title "surgeon" by medical specialists. After the judgment, the applicants sought costs against ASAPS and its president, arguing that they had incurred unnecessary expenses in preparing to counter evidence that the court ultimately refused to admit.

ASAPS had applied for leave to intervene under rule 9.12 of the Federal Court Rules which allows non-parties to participate in proceedings with court approval. The court permitted their intervention but restricted their participation to written and oral submissions. The court refused to admit the evidence they sought to introduce, finding that its late submission prejudiced the applicants, who lacked sufficient time to respond.

The rejected evidence included survey data on public perceptions of the term “surgeon” and educational comparisons between plastic surgeons and otolaryngologists. The court noted that this material was of questionable relevance to the case’s central legal issue—statutory interpretation.

The applicants argued that they had been forced to spend significant time and resources preparing to counter evidence that was ultimately ruled inadmissible. The court agreed, ordering ASAPS and its president to cover these costs. The interveners’ late application, the court found, put the applicants to unnecessary expense, including the preparation of objections and cross-examination plans.

The court dismissed ASAPS’ claim that they had been “on the winning side” of the case because the main application was ultimately dismissed. The court found this reasoning flawed, as the issues they sought to intervene were never reached in the court’s decision.

The interveners also sought to recover their own costs, arguing that their participation had been necessary to protect their members’ interests. However, the court rejected this claim, noting that their intervention was based on making a “useful and different” contribution rather than protecting their direct interests. The court also emphasised that the applicants had consented to their intervention but may not have done so had they known the interveners would later seek costs against them.

The Federal Court ruled in favour of the applicants, ordering ASAPS and its president to pay costs associated with opposing their attempt to introduce evidence.