Nolan v Repatriation Commission

[1999] FCA 1096

FEDERAL COURT OF AUSTRALIA

Nolan v Repatriation Commission [1999] FCA 1096

VETERANS - application for determination of qualifying service - appeal from judgment of Judge of Federal Court - appellant an Australian national who rendered service in the United States Army and Air Force Exchange Service in Vietnam - whether appellant an “allied veteran” - whether Army and Airforce Exchange Service an auxiliary service of regular United States military and airforces - whether statutory phrase used in technical or ordinary sense.   

Veterans’ Entitlements Act1986 (Cth), ss 5C(1), 5R(2), 7A(1)(c)

Hope v Bathurst City Council (1980) 144 CLR 1, cited
Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389, cited
Pepsi Seven-Up Bottlers v Commissioner of Taxation (1995) 62 FCR 289, cited
Peacock v Zyfert (1983) 48 ALR 549, cited
Truchlik v Repatriation Commission (1989) 25 FCR 414, distinguished

HELEN FLORENCE NOLAN v REPATRIATION COMMISSION

N 209 of 1999

HILL, WHITLAM and KATZ JJ
13 AUGUST 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 209 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HELEN FLORENCE NOLAN Appellant
AND:	REPATRIATION COMMISSION Respondent
JUDGES:	HILL, WHITLAM and KATZ JJ
DATE OF ORDER:	13 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 209 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HELEN FLORENCE NOLAN Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	HILL, WHITLAM and KATZ JJ
DATE:	13 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The Appellant, Ms Helen Florence Nolan, appeals from the judgment of a Judge of this Court (O’Loughlin J) dismissing an appeal which she had brought against a decision of the Administrative Appeals Tribunal. The Tribunal had dismissed an application which she had made to it for review of a decision of the Repatriation Commission, the Respondent, that she was not an “allied veteran”, as defined in the Veterans’ Entitlements Act1986 (Cth) (“the Act”), and had thus not rendered “qualifying service” within the meaning of that expression as defined in the Act. The consequence of the decision that she had not rendered such “qualifying service” was that she was not entitled to a service pension under the Act.

2. Paragraph 7A(1)(c) of the Act provides that a person has rendered “qualifying service” for the purpose of Pt III of the Act, dealing with service pensions:

   “… if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air forces of Australia were engaged, service in an area…