Alderton v Commissioner of Police, NSW Police Force

Applicable legislation

1. The general principles and objects of the Act are set out in s 3 as follows: 3 Principles and objects of Act (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) …
2. Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences ... (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and ... (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

The evidence

1. At the hearing on 25 May 2023, the Applicant relied on his affidavit dated 27 March 2023 (exhibit A1) (March affidavit) that included the following attachments:

• Firearms Registry Information on obtaining a firearms licence in NSW, version 2.7 September 2022 (Information Sheet),
• Certificate of Completion awarded to the Applicant for successfully completing the Online Traffic Offenders Rehabilitation Program (TORP) issued on 1 April 2023.

1. The Applicant also relied upon a copy of a pass in the Applicant's name with the words "Dec 23" and a serial number on it (exhibit A2), together with a letter from Neil Hughes, the CEO of Hughes Helicopters Pty Ltd dated 21 May 2023 (exhibit A3) that stated that the Applicant has been working towards his Private Licence Helicopters, PPL H, for the previous 12 months and was on the final part of the course with an expected completion date in August 2023. The Applicant adduced a further document with the heading "Hours Calculator" with a date of 22 May 2023 (exhibit A4) and a licence issued under the Security Industry Act 1997 (NSW) to Sunset Group Australia PTY LTD (exhibit A5). The Applicant gave oral evidence and was cross-examined by Ms Chenhall.
2. The Respondent did not call any oral evidence at the hearing and relied upon the s 58 documents (exhibit R1); an additional evidence bundle (exhibit R2) containing an ASIC search in relation to Freedom Regional Pty Ltd and three title searches relating to various properties; and a report from the Tasmania Police relating to the Applicant (exhibit R3).

Further evidence filed after the hearing date

1. In accordance with the directions made by me on 9 August 2023, the Respondent filed the following further documentary material on 19 September 2023: 1. A title search for a property owned by the Applicant dated 9 August 2023, 2. An application by the Commissioner of Fines Administration dated 20 March 2020 for a Charge on a property owned by the Applicant, 3. A NSW Police Force COPS Event Reference Number E 77094437, and 4. An updated Traffic Record dated 24 August 2023 relating to the Applicant.
2. The Applicant provided an affidavit dated 7 September 2023 (7 September affidavit) and an affidavit dated 11 September 2023 (11 September affidavit) together with a number of annexures including flight itineraries and credit card transactions.

Submissions

1. The Applicant and the Respondent relied on written submissions filed in the matter and made oral submissions at the conclusion of the hearing. Both parties filed further written submissions following the hearing.

Role of the Tribunal

1. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues

1. The Respondent identified the primary issues in this matter as follows: 1. Whether the Applicant is a resident of NSW or is about to become a resident; 2. Whether it would be contrary to the public interest for a firearms licence to be issued to the Applicant, particularly in light of his traffic history; and 3. Whether the Applicant has a genuine reason for possessing or using firearms.

Applicant's evidence

1. In his March affidavit, the Applicant stated that he is married and has a young daughter and that he lives between Bathurst in NSW, and Devonport in Tasmania. He stated that he owned three houses in NSW including a house in Bathurst (Bathurst house) and that he operated four companies based in Bathurst. He said that his principal residence is in Tasmania and that he returns regularly to NSW for business activities and to manage/attend to his properties in rural NSW. He said that he is never away from NSW for longer than three months and that since 2012, he has never stayed in NSW for more than 90 days.
2. In relation to information available to the Firearms Registry that apparently indicated that in June 2022, the Applicant provided an address in Calavos, Queensland as his residential address, he stated that he did not recall doing so and has no association with that address. He went on to say that the firearms licence was applied for in mainland NSW as that is where most of his land is located and where the guns will be stored. The Applicant referred to owning several large parcels of land within the Narrabri Council district including three in Wee Waa and one in Cuttabri. He stated that he also owned a large Western Lands lease property in Cobar and two further rural properties in Queensland and that these acquisitions had all taken place in the past one to three years.
3. The Applicant said that he has sheep, goats and cattle spread between the properties and that each property has significant problems with wild pigs, dogs as well as foxes and other pests. Further, each property has livestock that must be destroyed humanely when the time comes and that because of the growing acquisition of properties in NSW and the need to attend to them to prevent pests, and damage to livestock, that he has realised the need to have firearms. His evidence was that he has not previously been the holder of a firearms licence.
4. In his oral evidence, the Applicant indicated that he did not want to make any changes to his affidavit. He confirmed that his primary residence was in Tasmania and that this is where his wife and daughter live. The Applicant gave evidence that he had owned the Bathurst house since 2008 and that he personally paid the mortgage. His evidence was that the town of Bathurst was where he had grown up and went to school. He said that the Bathurst house was not tenanted and that it was used as accommodation by him and as a future investment. The Applicant's evidence was that he travels back and forwards and that the Bathurst house had a room set up for his baby and that his wife kept personal effects at the house. He said that he was the director of four different companies and that the amount of time he spent at the Bathurst house varied from month to month. The Applicant said that any recreation or leisure time that he had, he would "revert" to Tasmania. He said that due to his business issues, he was based in NSW but that he spent time in all of the eastern states of Australia and that he moved around.
5. In cross-examination, the Applicant said that he had married in 2012 and that Tasmania became his primary residence at that time. He acknowledged that he had previously had a NSW driver licence and that he currently held a Tasmanian driver licence. He stated that whilst he had properties in Queensland, he had not applied for a firearms licence in Queensland. The Applicant confirmed that his primary residence was in Tasmania and when asked where he spent the most time, he replied that it depended on what period, and that he had never done the exercise to know whether he spent the most time in Tasmania or in NSW every year.

Applicant's evidence provided after the hearing

1. Following the further evidence filed by the Respondent after the hearing, the Applicant filed his 7 September affidavit and his 11 September affidavit. The 7 September affidavit refers to a number of different matters and in relation to the issue of residency, the Applicant confirmed his evidence that his principal residence is in Tasmania, where his wife and daughter live. The Applicant stated that they live there together, and maintained that he also resides in NSW. He also confirmed that his Bathurst house is kept vacant and not leased. He stated that he keeps the home vacant so that his belongings are kept safe, so that the house feels like his with some homely belongings and personal items, and it remains vacant and readily available for his sole occupancy when he arrives at Bathurst. The Applicant says that the house contains and includes essential items in the bathroom and kitchen and living areas in particular which allow him to live comfortably including furniture, utensils, whitegoods, bedding and linen. The Applicant also stated that he considered that it would be inappropriate and illegal for him not to hold a licence in the state that he considers to be his principal residence.
2. In his 11 September affidavit, the Applicant provides details of the dates that he says that he has travelled to Bathurst and resided at the Bathurst house since 1 January 2023. The Applicant set out 12 occasions ranging from stays of 2 days to approximately 26 days and indicated that between some of the dates listed, he travelled to other parts of NSW but used the Bathurst house as his residential base. The Applicant provided copies of flight itineraries together with credit card transactions for the period 6 June to 7 July 2023.
3. In the Respondent's further written submissions in reply dated 21 September 2023, Ms Chenhall objected to the tender and reliance on these two affidavits. I have considered the Respondent's submissions in relation to this objection. I accept that the orders made by me on 9 August 2023 allowed for the Applicant to provide evidence in reply to any further evidence provided by the Respondent in the proceedings. However, the further evidence provided by the Respondent on 19 September 2023 did not relate to the issue of the Applicant's residency in NSW and accordingly, I accept that the references to residency contained in the Applicant's affidavits of 7 September and 11 September do not constitute evidence in reply. No application was made by the Applicant to seek to adduce further evidence on the issue of residency and no orders have been made to allow such further evidence. Accordingly, I do not allow the Applicant's further evidence relating to residency in NSW to be admitted as evidence in these proceedings.
4. I note that even if these portions of the Applicant's affidavits of 7 September and 11 September relating to residency had been allowed into evidence, parts of the material serve only to confirm the evidence already given by him. Further, the copies of the flight itineraries and the credit card transactions would have been of minimal probative value to my determination as to whether the Applicant meets the requirements in s 11(3)(d) of the Act. The flight itineraries sought to be relied upon indicate only the dates that the Applicant had a booking to fly between certain places and cannot establish whether the Applicant ultimately took the indicated flights, where he stayed after those flights or for how long he stayed.
5. The credit card statements for the period 7 June 2023 to 6 July 2023 that the Applicant sought to rely on would also have been of minimal probative value in determining whether the Applicant is a resident of NSW. In the 11 September affidavit, the Applicant stated that he uses the credit card for his everyday expenses and that the statement for the period 6 June to 7 July 2023 shows the transactions that he carried out whilst in Bathurst and other parts of NSW during that period. In the same affidavit, the Applicant stated that he resided at the Bathurst house during the period 27 June 2023 to 23 July 2023. Whilst the statement appears to indicate a number of transactions in Bathurst during this date range, it also appears to contain a large number of transactions relating to the Bathurst area outside of this period. Further, the Applicant did not seek to adduce any evidence as to whether he was the only card holder for this account or whether others were also authorised to use a card/s linked to that account.
6. Accordingly, I give no further consideration to the Applicant's affidavits of 7 September and 11 September in relation to the issue of residency.

Applicant's submissions on residency

1. In the Applicant's written submissions filed on 28 March 2023, Mr Lowe submitted on behalf of the Applicant that the Applicant is plainly a "joint" resident of NSW and Tasmania. It was submitted that the Tribunal would look to several factors in this regard including; his extensive land holdings and his occupation of those holdings in NSW for farming activities, the fact he owns three houses in NSW, and the fact that he owns the Bathurst house in which he "resides" when he is in the Bathurst region for business activities.
2. Mr Lowe drew the Tribunal's attention to the Information Sheet, in which it was submitted the Respondent provides generic guidance on residency requirements. Mr Lowe submitted that the document made clear that a person who is not absent for a period of longer than three months would still be considered a resident, and noted the Applicant's evidence that he is "never away for New South Wales for longer than three months". It was also submitted that the law does not require a person to be a resident of only one state and that is conceivable and sometimes necessary for a person to be a resident of more than one state.
3. As referred to above, I made orders at the conclusion of the hearing for both parties to provide further written submissions in relation to the issue of residency in NSW. Mr Lowe addressed this issue in the Applicant's closing submissions dated 6 September 2023. In the submissions, it was accepted that the definition of "resident" in Pang v Commissioner of Police, NSW Police Force [2009] NSWADT 11 (Pang) is appropriate to determine the question of whether the Applicant is a resident of NSW for the purposes of s 11 of the Act.
4. Mr Lowe noted that the Respondent's submissions avoid the issue that in Pang it was observed that a person who "dwells for considerable period" (Applicant's highlighting) is in fact a resident of that location and submitted that it is not necessary for the Applicant to establish how much time he dwells in Tasmania and NSW. In essence, it was submitted that the Applicant dwells for a considerable period in Bathurst, NSW and is therefore plainly a resident of NSW for the purposes of the Act. It was also noted that the previous reference to the term "joint resident" was merely a subjective descriptor used to explain the Applicant's situation that he has two residences that are in two separate states of Australia. It was further submitted by way of general submission that it would not be considered a foreign concept that a person might live between more than one house or property and that the law also recognised this reality in many respects.
5. It was submitted that the contention by the Respondent that Pang serves as supportive authority for the broad argument that a person cannot reside in more than one location (at least for the purposes of the Act), was plainly incorrect and ignores and defies the reality of everyday life in Australia and fails to consider the Information Sheet. Further references were made to the Tribunal in Pang rejecting the notion of "permanency" as a necessary consideration in the assessment of the definition of the term "reside".

Respondent's submissions on residency

1. In the written submissions filed on 27 April 2023, the Respondent relied on s 11(3)(d) of the Act and the decision in the matter of Pang and submitted that the Applicant is not a resident of NSW. It was submitted that whilst the Applicant had provided Rates Arrears Notices for various properties, this established that the properties were owned by a company and did not demonstrate residency by the Applicant. It was submitted that the Applicant also owned land in Queensland and that further suggested that the Applicant was not a resident in NSW but simply has various property interests across the country.
2. The Respondent submitted that the question then is whether the Tribunal can be satisfied that the Applicant "resides" in NSW when he has affirmed that his principal place of residence is in Tasmania; that since 2012 he has never stayed in NSW for more than 90 days; and that he attends NSW "for business activities and to manage/attend to [his] properties". The Respondent submitted that on this evidence, the Applicant cannot be said to be dwelling in NSW permanently or for a considerable time period and that he dwells in NSW temporarily for specific business purposes and for very limited times. It was submitted that his pattern of movement does not meet the ordinary definition of "reside" as set out by the Tribunal in Pang.
3. In the Respondent's written submissions dated 24 August 2023, Ms Chenhall confirmed that the Respondent relies on the definition of "resident of this State" in Pang and submitted that the Tribunal in that matter determined at [27] that ownership of property "demonstrates no more than he owns property in NSW. it does not demonstrate that he has his home there, or lives there".
4. The Respondent referred to the Applicant's assertions that he is a "joint" resident of NSW and Tasmania and is therefore entitled to be issued with a NSW firearms licence, yet drives on a Tasmanian driver licence. The Respondent submitted that the concept of a "joint resident" between states of Australia does not exist in law and should be rejected in its entirety by the Tribunal. The Respondent submitted that in the Application, the Applicant stated that his residential address was in NSW. It was submitted that the Applicant claimed that he is never away from NSW for more than three months, however he has also never stayed in NSW for more than 90 days since 2012 but has failed to provide any evidence of travel between states to support this claim, noting of course that the only means of travel between NSW and Tasmania is by boat or air.
5. It was also submitted that whilst the Applicant continually asserted that he owned rural property in NSW, he only provided rates notices in a company name. Instead, it was submitted that it was left to the Respondent to conduct title searches on these rural properties in Narrabri, which confirmed that the properties were owned by the Applicant's company, rather than the Applicant himself. The Respondent submitted that whilst it may be a minor difference, the case of Pang is again relevant.
6. It was submitted that the only factor that could be determinative of residency is the Applicant's choice to obtain and use a Tasmanian driver licence and clearly, the Applicant has decided that he resides in Tasmania and not in NSW and the Tribunal would make this finding accordingly. The Respondent therefore submitted that the Applicant cannot claim to reside in Tasmania for the purposes of holding a driver licence and then claim to reside in NSW for the purpose of obtaining a NSW firearms licence, and that this would be farcical position and not in keeping with the objectives of either regulatory scheme.
7. It was further submitted that the Tribunal would not accept the oral evidence of the Applicant on the issue of residency in both NSW and Tasmania, when in his evidence and cross-examination, he stated that his principal residence was in Tasmania. Further, it was submitted that there was no evidence from the Applicant's wife or any other documentary evidence in support of his claims, despite indicating that he travels with his wife and child.
8. In the Respondent's further written submissions in reply dated 21 September 2023, reference was made to the examples given by the Applicant in the closing submissions in relation to people living in more than one house or property. The Respondent submitted that these examples had no relevance to the proceedings, were hypothetical at best and provided no assistance to the Tribunal in determining the question of residency.
9. The Respondent submitted that the principles and objectives of the Act and Firearms Regulation 2017 (NSW), are clearly focused on public interest and public safety and that the examples of decisions involving tax law cases are focussed on the collection of taxes. It was submitted that these are two completely different regimes and were not useful to the Tribunal in determining residency in a firearms application. The Respondent again submitted that the Applicant has not demonstrated residency in NSW at all, which is a mandatory requirement for the issuing of a licence, and at best, had claimed that he regularly travels to NSW for work and stays in Bathurst before returning to Tasmania to be with his family, where they reside.
10. As referred to previously, the Respondent also set out the objections to the further evidence provided by the Applicant.

Consideration

1. Residency in NSW is a mandatory requirement for the issue of a firearms licence. Section 11(3)(d) of the Act provides that a licence must not be issued unless the Commissioner, and by extension this Tribunal, is satisfied that the person to whom the licence is to be issued is a resident of this State or about to become a resident of this State. In Pang at [23]-[28], Judicial Member Molony said as follows: 23 There is no definition of the word 'resident' in the Firearms Act 1996. That being the case the words 'resident of the State' are to be interpreted in accordance with their ordinary and current meaning, unless there is something in the context which indicates an intention to depart from that meaning: Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157. 24 The Macquarie Dictionary defines resident as: noun 1. someone who resides in a place 25 'Reside' is defined thus: 1. to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill. 26 On an ordinary understanding the meaning of the word resident, it is my view that Mr Pang, living as he does in Hong Kong, is not a resident of NSW. The fact that he may have the immigration status of permanent resident of Australia and holds a subclass 155 visa does not make him a resident of NSW. He does not live here and has not done so for a considerable time. 27 That he owns a property in NSW in which he intends to reside in the future does not make him resident in the State. That property is presently let to tenants. His ownership of the property demonstrates no more than that he owns property in NSW. It does not demonstrate that he has his home here, or lives here. Indeed, all the evidence points to him having a home in Hong Kong and living there for some time. This conclusion, I note, is consistent with the decision in Burditt v Joslin [1981] 3 All ER 203, to which I referred the parties. There Donaldson LJ and Bingham J held the ownership of property, which did not carry with it a right of occupation because it was let to tenants, was not sufficient to show that an applicant for a firearms certificate, under section 26 of the Firearms Act 1968 (UK), resided within the area in which he had applied for a certificate. 28 I consider this interpretation to be consistent with and in accordance with object of the Firearms Act 1996.
2. Judicial Member Molony stated at [30]: 30 Central to the Commissioner's submission was the use of the words 'reside on permanent basis in the State' in subsection (1), which the Commissioner argued was inconsistent with the residence requirement in section 11(3)(d). I disagree. In my view when examined the context in which the words 'reside on permanent basis in the State' are used in section 27, it rapidly becomes apparent that they are being used to achieve a different object to that sought to be achieved in s 11.
3. I agree with the approach that was taken by Judicial Member Molony in Pang, and which he adopted, but with a different outcome, in Nelson v Commissioner of Police [2012] NSWADT 84 and which has also been adopted by the Tribunal in Chudleigh v Commissioner of Police [2022] NSWCATAD 267 and in Dempster v Commissioner of Police [2022] NSWCATAD 289. The Applicant and Respondent both accepted the definition of "resident" in Pang as appropriate in this case. The Applicant's position was that he resided both in Tasmania and in NSW. At no time did he contend that he was about to become a resident of NSW and no evidence to this effect was adduced. On this basis, I limit my consideration in this matter to the issue of whether the Applicant is a resident of this State.
4. Mr Lowe referred to the Information Sheet in his submissions. The Information Sheet notes that a definition of residency is not contained in the Act and that residency can be defined as "dwelling permanently or for a considerable period of time." The Information Sheet then goes on to set out a number of matters that the Respondent may take into consideration when determining if a person is a permanent resident of NSW and also refers to circumstances where a licence holder may be absent from NSW and still be deemed to be a resident of NSW.
5. I agree with Judicial Member Molony's conclusion at [35]-[36] of Pang, that there is no ambiguity in relation to the interpretation of 11(3)(d) of the Act. The provision is not obscure, and the interpretation reached in Pang, and which has been accepted in this matter, is not manifestly absurd or unreasonable and accordingly, that consideration of extrinsic material is not necessary to confirm that the meaning of s 11(3)(d) is the ordinary meaning conveyed by the text of the provision. I find that there is no good reason to resort to the Information Sheet in interpreting this provision and that it does not assist me with determining whether the Applicant is a resident of this State for the purposes of the Act. Accordingly, I give no further consideration to it.
6. In the Applicant's closing submissions, Mr Lowe referred to various examples where a person might live between more than one house or property. Whilst I accept that there are a number of situations where a person may move between different houses or properties, I do not find these examples to be helpful in relation to the issue for determination in this matter, namely whether the Applicant is a resident of this State for the purposes of the Act. Mr Lowe also referred to provisions in the Land Tax Management Act 1956 (NSW) and the Commonwealth Electoral Act 1918 (Cth) as well as to a number of cases involving the Chief Commissioner of State Revenue in relation to residency. Similar to the situation in Pang at [16], the legislation referred to on behalf of the Applicant, was enacted with different objects and legislative purposes to the Act, and I do not find the references to the legislation or decisions to be of assistance in determining the task at hand.
7. The Applicant's evidence was that he owns three houses in NSW, including the Bathurst house, and several large parcels of land within the Narrabri Council district in NSW, a large Western Lands lease property in Cobar NSW and two further rural properties in Queensland. In his Application he gave his residential address as the Bathurst house and in response to the safe storage address, he indicated "NA".
8. In support of his Application, the Applicant provided three Rates Arrears Notices from Narrabri Shire Council relating to two properties In Wee Waa, NSW and one in Cuttabri, NSW. A letter from a solicitor relating to the purchase of a property in Hookswood, Queensland was also provided. The Rates Arrears Notices indicated that each of these properties was owned by Freedom Regional Pty Ltd (Freedom).
9. The Respondent's Additional Evidence Bundle (exhibit R2) included an ASIC Search relating to Freedom indicating that the Applicant was the sole Director and Secretary of the company, with all shares being held by Stephanie Alderton. The company address for Freedom is recorded as being in Orange and the address for both the Applicant and Stephanie Alderton is the Bathurst house. Land title searches for the three properties were included in the Respondent's evidence confirming that the properties are owned by Freedom.
10. In accordance with the orders made by me on 9 August 2023, the Respondent provided further documentary evidence. Included in that evidence was a title search for the Bathurst house. I have had regard to this document insofar as it relates to the ownership of that property and confirms the Applicant's oral evidence that he owns the Bathurst house and I accept this to be the case. I accept the Applicant's evidence that he grew up in Bathurst and that the Bathurst house is not leased out and that it is available for the Applicant to stay in whenever he wants to. I accept the Applicant's oral evidence at the hearing that he uses the Bathurst house as accommodation when he is in the area for business, that his wife has personal effects in the house and that the house contains a room set up for his daughter.
11. On the evidence before me, the only property that has been established as being personally owned by the Applicant is the Bathurst house. The evidence given by the Applicant about the various other properties in NSW and Queensland goes only to establish that a number of these properties are owned by a company, namely Freedom, and that the Applicant is the Director and Secretary of Freedom. No evidence was given by the Applicant about the other two houses that he owned in NSW and whether they were owned by him or by a company in which he is involved or whether or not they were let to tenants. There was no evidence as to whether the two properties in Queensland, at least one of which is owned by Freedom, had dwellings on them and whether or not these dwellings were let to tenants. No evidence was adduced as to whether the Applicant stays in these properties, and if so, for what period of time. In any event, it is the Applicant's ownership of the Bathurst house and the time spent there in connection with his business activities in NSW that is relied upon by the Applicant to establish that he is a resident of this State. The Applicant did not contend that his wife and daughter are residents of NSW.
12. It is clear that the definition of "reside" relied upon in Pang and taken from the Macquarie Dictionary incorporates a temporal element and includes circumstances where a person either resides in NSW permanently or for a considerable time. It was not contended that the Applicant permanently resides at the Bathurst house, and this is clearly not the case. The question is whether the Applicant resides at the Bathurst house and whether the time that he spends there can be said to be a considerable time. The Macquarie Dictionary relevantly defines "considerable" to mean "(of an amount, extent, etc) worthy of consideration; fairly large or great".
13. I accept the Applicant's evidence that he grew up in Bathurst, went to school in Bathurst and has family there. However, his evidence was that the reason for his regular return to NSW was for business activities and to manage/attend to his properties in regional NSW and that he currently uses the Bathurst house as accommodation when he is in the area for business reasons and for future investment. His evidence was that he is the Director of four companies and that he is also involved in two companies based outside of NSW. He gave evidence that he "moves around" and that he spends time "in all of the eastern states of Australia."
14. It is apparent that the Bathurst house is a significant distance from the properties owned by Freedom in the Narrabri Shire Council area and in Hookswood, Queensland and the Applicant's evidence was that his businesses are regionally based and that he routinely drives great distances, including to South Australia, Broken Hill and Townsville. There was no evidence given by the Applicant as to where he stayed when he visited these properties or when he went to South Australia, to Broken Hill or to Townsville.
15. The Applicant did not give evidence as to the exact periods of time that he has spent, or currently spends in NSW, and in particular the amount of time he spends at the Bathurst house. He did not adduce any supporting evidence such as evidence from his wife, his family or from his neighbours in Bathurst in this regard. Instead, the Applicant relied primarily on generalities, including that he stays at the Bathurst house when he is in the area for business, that he returns regularly to NSW and that he is never away from NSW for more than three months. It would appear on this evidence that the longest continuous period of time that the Applicant could conceivably have stayed at the Bathurst house since 2012 is 90 days. Given that the longest period of time that he states that he has been away from NSW is three months, it would appear that the minimum number of times that the Applicant visits NSW is four times a year. There is however no evidence as to how many times the Applicant actually travels to NSW, or to the Bathurst house or the actual time spent by the Applicant in NSW or at the Bathurst house.
16. Having regard to the Applicant's evidence that his primary residence is in Tasmania; that the time he spends in NSW changes from month to month; that he moves around and spends time in all of the eastern states as well as in South Australia, it is clear that the time that he spends in NSW varies considerably and I find that it is very probable that he spends significantly less than 90 days on each occasion that he stays at the Bathurst house. In the absence of the actual time spent in either NSW or at the Bathurst house, and having regard to the available evidence, I am not satisfied that the time spent by the Applicant at the Bathurst house can be characterised as considerable.
17. The Respondent submitted that the Tribunal determined in Pang at [27] that ownership of property "demonstrates no more than that he owns property in NSW. It does not demonstrate that he has his home here, or lives here." This statement by Judicial Member Molony was made in the context of a house in NSW in which the applicant in that matter intended to reside in the future and which was at that time let to tenants. This is somewhat distinguishable from the current matter as I have found that the Applicant stays on occasion at the Bathurst house and that it is not let to tenants.
18. However, the Act does not require that a person to whom a firearms licence is to be issued is an owner of property in this State but rather that the person is a resident of this State. Accordingly, the Applicant's ownership of the Bathurst house, even if it is not leased out, does not of itself demonstrate that the Bathurst house is his home or that he lives in NSW. Indeed, all of the evidence points to him residing in Tasmania and undertaking travel to NSW and other States for business. It is apparent that the Applicant's wife and daughter reside in Tasmania and the Applicant acknowledged that he resides there with them. The Applicant gave evidence that Tasmania is his primary residence and that is the State in which he holds his driver licence. It was not at any time contended by the Applicant that his wife and daughter are resident in NSW, even though they spend time at the Bathurst house, his wife keeps personal effects there and his daughter has a room set up for her.
19. Having regard to the evidence before me, I accept that the Applicant is a resident of Tasmania. Whilst the Applicant does on occasion stay at his Bathurst house, I find that he cannot be said to reside there and instead that he uses it as temporary accommodation only when he is attending to specific business interests in the area. This finding is reinforced by the Applicant's evidence that during any recreation or leisure time that he has, he reverts to Tasmania where his wife and daughter reside.
20. I have found that the Applicant has not established that he spends considerable time either at the Bathurst house, or in NSW, and I am satisfied that the time that he spends at the Bathurst House is limited, and driven by his business activities. I am satisfied on the evidence that the Applicant does not reside at the Bathurst house and that he, and on occasions his wife and daughter, use it as temporary accommodation whilst the Applicant attends to his business interests in the area.

CONCLUSION

1. Having regard to all of the evidence in this matter and to the ordinary understanding of the words resident of this State in s 11(3)(d) of the Act, I am not satisfied that the Applicant is so resident.
2. Is it mandatory for the issue of a firearms licence under the Act, that I am satisfied that a person to whom the firearms licence is to be issued is a resident of this State or is about to become a resident of this State. Accordingly, having found that the Applicant is not a resident of this State, I must refuse the Application.
3. Having made this finding, I am not required to consider the further grounds raised by the Respondent or the further submissions made on behalf of the Applicant.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2024