Nolan v Repatriation Commission [1999] FCA 130

FEDERAL COURT OF AUSTRALIA

Nolan v Repatriation Commission [1999] FCA 130 VETERANS - application for a disability pension - applicant, an Australian national, employed in Vietnam as a civilian non-combatant by the United States Army & Airforce Exchange Service - whether the applicant was an "allied veteran" - whether it would have been unreasonable to require the applicant to wear a uniform or insignia. Veterans' Entitlement Act 1986 (Cth) ss 5C(1), 5R(2), 7A, 35B Geneva Conventions Act 1957 (Cth) Sch 3,A(4) Standard Oil Co of California v Johnson 316 US 481 (1942) referred to United States v Hopkins 427 US 123 (1976) referred to Army and Air Force Exchange Service v Sheehan 456 US 728 (1982) referred to Joseph v Repatriation Commission (1991) 100 ALR 549 discussed Boots v Repatriation Commission (1993) 42 FCR 108 referred to Re Marinucci and Repatriation Commission (1991) 23 ALD 632 discussed

HELEN FLORENCE NOLAN v REPATRIATION COMMISSION NG 343 OF 1998

O'LOUGHLIN J

ADELAIDE (HEARD IN SYDNEY)

24 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 343 OF 1998

BETWEEN: HELEN FLORENCE NOLAN

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 24 FEBRUARY 1999

WHERE MADE: ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT: The appeal be dismissed with costs. 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 NG 343 OF 1998

BETWEEN: HELEN FLORENCE NOLAN

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: O'LOUGHLIN J

DATE: 24 FEBRUARY 1999

PLACE: ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

The Application

1 The appellant, Helen Florence Nolan ("Ms Nolan"), an Australian National, served with an American body called the Army and Air Force Exchange Service ("AAFES") in Vietnam from 31 December 1968 to 21 April 1970. In 1996 she wanted to establish that she had rendered "qualifying service" as that term is defined in the Veterans' Entitlement Act 1986 (Cth) ("the Act"). She claimed that she was then suffering from a post-traumatic stress disorder which, so she said, was attributable to her experiences whilst working in Vietnam. On 2 October 1996, Ms Nolan lodged a formal application to have her qualifying service determined but, two days later, a Delegate of the Repatriation Commission decided that she was not a "veteran" within the meaning of that word as it is defined in subs 5C(1) of the Act. The Delegate had come to that conclusion on the ground that Ms Nolan was not a member of a defence force that had been established by an allied country. A review of the Delegate's decision was conducted under s 57A of the Act and, on 5 March 1997, the decision was confirmed. 2 Ms Nolan, having applied unsuccessfully to the Administrative Appeals Tribunal ("the Tribunal") to review the respondent's decision, now appeals to this Court against the Tribunal's decision. The Army and Airforce Exchange Service 3 Ms Nolan was employed by the AAFES in several locations in Vietnam; that organisation is commonly referred to as "the PX". An outline of the history and structure of the organisation, including an outline of its activities, is contained in the reasons of the Tribunal. They are set out hereunder: "8. The Army and Air Force Exchange Service (AAFES) has been known by this name since 26 July 1948. According to its home page on the Internet, it was established on 25 July 1895 when a General Order was issued by the War Department of the United States of America, directing Post Commanders to establish an exchange at every post where practicable. The home page explains that this General Order set the standard for the concept and mission of today's exchange service. On the basis of the evidence put before us, it would seem likely that the organisation continues to be constituted only by an administrative arrangement with the US Department of Defence. As such, it is sometimes referred to as an agency of that Department, although perhaps this is not an accurate use of the word agency according to common US Government parlance. 9. The service operates in two theatres, namely in Europe and in the Pacific. The Pacific Exchange Service (PACEX) is divided into various strands such as Japan Regional Exchange, Hawaii Regional Exchange, Korean Exchange and Vietnam Regional Exchange. These bodies are again subdivided into area exchanges. At the relevant time in Vietnam, there were exchanges known as the Cam Ranh Bay Area Exchange, Da Nang Area Exchange, China Beach Area Exchange and so on. According to the home page, all of these area exchanges have been referred to as the PX since 1919. 10. 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. 11. Although it is sometimes described as an agency of the US Department of Defence, the AAFES is clearly not part of the regular naval, military or air forces of the United States. It employs some members of those forces. It also employs civilians who are non-combatants. It is essentially self funding from cash flow. It does not depend upon funds appropriated by Congress. Employment of uniformed personnel does not make it a segment of the army. The evidence of Dr Grey, a specialist military historian, was that at the relevant time, there were five types of PX staff in Vietnam: (a) Officers and enlisted personnel from the two services concerned; (b) US civilians posted from the United States known as US universal salary plan exchange employees; (c) locally engaged US civilians who were often family members of US officials; (d) third country nationals recruited from various parts of the region such as the applicant; and (e) local nationals, that is to say Vietnamese civilians." 4 Counsel for the appellant referred to three decisions of the United States Supreme Court: Standard Oil Co of California v Johnson 316 US 481 (1942), United States v Hopkins 427 US 123 (1976) and Army and Air Force Exchange Service v Sheehan 456 US 728 (1982). Each of these cases contributes to a further understanding of the operation and status of the AAFES and those who work for it. The following facts can be extracted from those cases: