Miller v Bonyhady

Miller, the applicant, sought judicial review of a decision by the respondent, Bonyhady, to refuse to grant him a licence to carry on the business of a bookmaker. The applicant had been convicted of an offence under the *Betting Control Act 1953* (NSW) and the respondent, acting under section 10(1)(b) of the *Lotteries and Gaming Act 1997* (NSW), refused the licence on the grounds that the applicant was not a fit and proper person to hold such a licence. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the respondent had erred in law by failing to give sufficient weight to the applicant's evidence of rehabilitation and by failing to provide adequate reasons for his decision to refuse the licence. Specifically, the court considered whether the respondent's decision was affected by an error of law in the application of the "fit and proper person" test, and whether the principles of procedural fairness, including the requirement for adequate reasons, had been breached.

Gummow and Kirby JJ, in their joint judgment, found that the respondent had indeed erred in law. They reasoned that while the respondent was entitled to consider the applicant's past conviction, he was also obliged to consider all relevant evidence, including evidence of rehabilitation and changed circumstances. The failure to give sufficient weight to this evidence, and the consequent failure to provide adequate reasons for the decision, meant that the respondent had not properly exercised his discretion under section 10(1)(b). The judges emphasised that a decision to refuse a licence on character grounds must be based on a proper assessment of all available material, and that the reasons provided must be sufficient to allow the applicant to understand the basis of the decision.

The High Court ordered that the decision of the respondent be quashed and remitted to the respondent for reconsideration according to law.