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 within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy….”

   The term “allied veteran”, used in par 7A(1)(c) of the Act, is relevantly primarily defined in subs 5C(1) of the Act as meaning a person:

   “(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and

   (b)who has rendered continuous full-time service as such a member during a period of hostilities…”

   The term “defence force established by an allied country”, used both in subs 5C(1) of the Act and in par 7A(1)(c) of the Act, is defined in subs 5C(1) of the Act as meaning,

   “(a)   the regular naval, military or airforces; and

   (b)the nursing or auxiliary services of the regular naval, military or airforces of the country; and

   (c)the women’s branch of the regular naval, military or airforces;

   raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:

   (d)were formally appointed to, or enlisted in, those forces or services; and

   (e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and

   (f)were required to carry arms openly; and

   (g)were subject to the rules and conventions of warfare.”

   However, that definition has been given an extended meaning in relation to an “allied veteran” by subs 5R(2) of the Act. The latter provision sets out certain criteria which, if satisfied by a person, require that person to be treated, for the purposes of the definition of “allied veteran” in subs 5C(1) of the Act, as a person who has been appointed or enlisted as a member of the defence force established by an allied country. Those criteria are,

   “(a)that the person had been appointed or enlisted as a member of the services or forces of

   (i)an allied country, being forces or services of a kind referred to in the definition of defence force established by an allied country;… and

   (b)that those forces or services were raised and operated in such a manner that the members of those forces or services:

   (i)were formally appointed to, or enlisted in, those forces or services; and

   (ii)were subject to the rules and conventions of warfare;

   and

   (c)that the person was not required, as such a member, to wear a uniform or insignia distinguishing the person as a member of those forces or services or to carry arms at all or to carry arms openly; and

   (d)that it would have been unreasonable, having regard to the conditions existing, at the time the person served in those forces or services, in the parts of that country in which the person so could serve, for the person to have been required to wear a uniform or insignia or to carry arms or to carry arms openly….”

3. It had been Ms Nolan’s claim before the Commission that she had rendered “qualifying service” for service pension purposes, having complied with par 7A(1)(c) of the Act. She claimed to have satisfied the requirement of being an “allied veteran” by reason of her meeting the criteria set out in subs 5R(2) of the Act. She claimed that she had been appointed as a member of a service of an allied country, being a service of a kind referred to in the definition of “defence forces established by an allied country” in subs 5C(1) of the Act, namely, an auxiliary service of the regular military and airforces of that country, and that she had otherwise complied with the requirements of subs 5R(2).

4. The facts are not in dispute.  Ms Nolan had joined an American organisation called the Army and Air Force Exchange Service (“AAFES”) in 1968.  In the period from 1968 to 1970, she was employed in Vietnam during the war there. 

5. The AAFES was established in 1895 and administered within the US Department of Defense.  The Tribunal described it in the following terms:

   “The organisation provides retail services to members of the U.S. (and sometimes other) armed forces. In the more remote exchanges, the goods sold would be basic comfort goods. However, the organisation now has many outlets and products. It has 10,878 facilities throughout the world, supporting 25 separate businesses in 25 countries and overseas areas, as well as in every State in the United States. These facilities include 1,423 retail outlets and 218 military clothing stores on army and air force installations around the world. AAFES also runs 1,809 food facilities, mobile units, snack bars, name brand fast food franchises and concession operations. Other AAFES activities include theatres, personal service concessions, vending centres, class 6 stores and the overseas school lunch program which serves approximately 27,000 lunches daily to Department of Defence school children.”

6. The AAFES, while not a branch of the regular naval, military or airforces of the United States, employed some members of those forces and also civilians, such as Ms Nolan. Civilian employees were not uniformed and did not carry a weapon, but were issued with identification cards from the United States Department of Defense for the purposes of the Geneva Convention. Ms Nolan’s card provided that she was entitled to be given the same treatment as a non-commissioned officer in the United States Army.

7. Senior Counsel for Ms Nolan submitted that the Tribunal had erred in law in three ways: first, by concluding that the AAFES was not an auxiliary service of the regular military and airforces of the United States; secondly, by finding that Ms Nolan had not been appointed to the AAFES; and, thirdly, by not adequately or at all dealing with the question whether it would have been unreasonable, having regard to the conditions existing in Vietnam during the time Ms Nolan worked there, for her to be uniformed or carry arms. It was further submitted that the same or similar errors had tainted the judgment of the learned primary Judge.

8. It is common ground that, to succeed on this appeal, Ms Nolan must demonstrate that the AAFES was, as she submitted, an auxiliary service.  Unless it was, it would be unnecessary to consider her remaining submissions.  Accordingly, we turn first to consider that issue.

9. In its reasons dealing with that issue, the Tribunal said:

   “In our view, the ‘forces’ or ‘services’ referred to in the definition ‘defence force established by an allied country’ were not intended to refer to a service such as the PX [which was another name for the AAFES]. The evidence of Dr Grey (which was uncontested) was that in military parlance, the term ‘auxiliary service’ was intended to denote a formed body of uniformed personnel that was not part of the mainstream forces but was generally subject to military discipline. This would not be an appropriate description of the AAFES in any of its manifestations.”

10. The phrase auxiliary service, when read in conjunction with the requirement that such auxiliary service be “of the regular naval, military or airforces of the country”, is a phrase which has a special meaning within the profession of arms, a meaning which is, perhaps, different from the ordinary meaning which might otherwise have been ascribed to it.  That was the thrust of Dr Grey’s evidence, which the Tribunal accepted. It may be noted that Ms Nolan did not object to the admissibility of that evidence when given before the Tribunal.

11. Where a word or a phrase is used in a statute, a question will often arise whether that word or that phrase, or even a word which is a part of that phrase, is used in its ordinary sense or is used in a technical sense and in a way which differs from the ordinary English usage.  That question is one of construction and involves a question of law.  It will arise only where the technical usage differs from the ordinary English usage: Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8; Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389 at 398-9, 401; Pepsi Seven-Up Bottlers v Commissioner of Taxation (1995) 62 FCR 289 at 296-9; Peacock v Zyfert (1983) 48 ALR 549 at 554-6. While that principle is often discussed in the context of revenue legislation, it is not restricted to such legislation.

12. The present legislation is concerned relevantly with the consequence of war on persons engaged in it, whether those persons are members of the Australian armed forces, allied forces or those appointed to or enlisted in auxiliary services.  In our view it is in these circumstances appropriate to construe the phrase auxiliary service in the context of such services which are of the regular navy, military or airforces of other countries as having a meaning understood by those in the profession of arms.

13. It was submitted for Ms Nolan that the reasons for judgment of Davies J as a member of a Full Court of this Court in Truchlik v Repatriation Commission (1989) 25 FCR 414 at 418 stood for the proposition that no words in the Act should be accorded special technical meanings. We do not accept that submission. Davies J was there concerned only with the word “served” and the words “served … in” and expressed the view (only) that those words should not be given any special technical meaning in the Act. It does not follow from the fact that those words should not be given any special technical meaning that the same conclusion should be drawn as to every word or phrase in the Act.

14. Although there may be a distinction between an auxiliary force, on the one hand, and an auxiliary service of an armed force, on the other, it appears to us that the technical meaning given to the phrase auxiliary service by Dr Grey is supported both by the definition of “auxiliary” in the Oxford English Dictionary (2^nd ed, 1989) and by Clode in his Administration of Justice under Military and Martial Law (2^nd ed, 1874).

15. In the Oxford English Dictionary, the word “auxiliary” as an adjective is said to be used especially in warfare and the reader is directed in that connection to one of the word’s uses as a substantive. That use of the word as a substantive is as follows: “Mil. (usually in pl.) foreign or allied troops in the service of a nation at war”.

16. Further, Clode spoke (at 61, n 3) of the term “auxiliary forces” as being “now used on the ‘Army Estimates’ as a general term to include the forces referred to in this chapter”. The forces referred to in the relevant chapter were three: the Militia, Yeomanry and Volunteers.

17. Once it is accepted that it was open to the Tribunal both to conclude that the phrase auxiliary service does have a technical meaning and that Dr Grey’s evidence of that meaning should be accepted it follows that AAFES was not an auxiliary service within the meaning of par 5C(1)(b) of the Act. It follows that we need not consider Ms Nolan’s remaining submissions and that the appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             13 August 1999

Counsel for the Appellant:	R McColl QC;  V Heath
Solicitor for the Appellant:	Willis & Bowring
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 1999
Date of Judgment:	13 August 1999