Moloney v DUARTE

Moloney (the applicant) sought judicial review of a decision by the respondent, DUARTE, to refuse to grant him a licence to carry on the business of a second-hand dealer. The applicant had been convicted of an offence under the *Crimes Act 1900* (NSW) and the respondent had refused the licence on the grounds that the applicant was not a fit and proper person to hold such a licence, pursuant to section 4(1)(c) of the *Second-hand Dealers and Pawnbrokers Act 1943* (NSW). The matter came before Judge Raphael in the Supreme Court of New South Wales.

The primary legal issue before the 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 properly consider the applicant's submissions regarding his fitness to hold the licence. The Court was required to determine if the respondent's decision was affected by an error of law, specifically in the application of the "fit and proper person" test under the *Second-hand Dealers and Pawnbrokers Act 1943* (NSW).

Judge Raphael found that the respondent had failed to properly consider the evidence of rehabilitation presented by the applicant. The Court held that while the applicant's prior conviction was a relevant factor, it was not determinative of his current fitness to hold a licence. The respondent was required to weigh all relevant factors, including evidence of rehabilitation, remorse, and changed circumstances. The Court concluded that the respondent had fettered its discretion by treating the conviction as an absolute bar to obtaining a licence, thereby committing an error of law.

The Court ordered that the decision of the respondent be quashed and remitted the matter to the respondent to be determined according to law.