Appellant v Respondent

1 On 6 December 2015, the appellant's mother, Catherine Marsh, was tragically killed in a motor vehicle accident.[1] At the time of his mother's death, the appellant was 19 years of age.[2] He completed year 12 at the end of 2014 and took a 'gap year' in 2015.[3] During 2015, he worked full-time between February and November in an electronics store and then on a casual basis with a couple of hospitality and events companies.[4] At the time of his mother's death, he was working 15 to 25 hours a week.[5]

2 In September 2015, he enrolled in a Diploma of Events at the College of Event Management, a registered training organisation. The course was due to commence on 1 February 2016. He was enrolled as a full-time student, and had been given a student number and enrolment details.

3 On 23 February 2016, the appellant's father submitted a Funeral and Dependency Benefits Claim Form with the Transport Accident Commission ('TAC') under the Transport Accident Act 1986 (the 'Act'). The dependency claim was made on behalf of the appellant.

4 The dependency claim was refused on 8 March 2016 on the basis that the appellant was over the age of 16 and not a full-time student and therefore not a 'dependent child' within the statutory definition, which required him to be both dependent and a 'full-time student'. The TAC accepts that the appellant was a dependent of his late mother at the time of her death but says that he was not, at that time, a 'full-time student'. The appellant applied for review of TAC's decision in the Victorian Civil and Administrative Tribunal (the 'Tribunal').

5 The Tribunal affirmed the decision of TAC. The appellant seeks leave, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act') to appeal on a question of law. For the reasons that follow, I would grant leave to appeal, allow the appeal, set aside the decision of the Tribunal and, in its place, determine that the appellant was a dependent child within the meaning of the Act at the time of his mother's death.

6 A dependent child in relation to a person means a child of that person who, as at the time of death or injury of that person -

is under the age of 16 years; or

has attained the age of 16 years but is under the age of 25 years and is a full-time student or an apprentice -

and would, but for the injury or death of that person, be wholly, mainly or in part dependent on that person for economic support but does not include a child who has a spouse or domestic partner.[6]

7 'Dependant', in relation to a person who is injured or dies, means a person who would, but for the injury or death, be 'wholly, mainly or in part dependent on that person for economic support'.[7]

8 By s 35(2), a dependant of a person who dies as a result of a transport accident is entitled to compensation in accordance with the Act if the person who dies was or would, but for the death, have been entitled to compensation in respect of the accident under s 35(1).

If a person dies as a result of a transport accident and leaves a dependent child whose other parent is not a dependent partner of the person or does not wholly, mainly or in part provide economic support for the dependent child or is dead or dies as a result of the same accident, the Commission is liable to pay weekly payments, a death benefit and an education allowance in accordance with this section.

10 The weekly payments and education allowance are payable until the child (relevantly) 'ceases to be a full-time student'.[8]

11 The member noted that there was no dispute that the relevant part of the definition required the appellant to be a 'full-time student' at the time of his mother's death in December 2015.[9] Before the Tribunal, TAC accepted that, had the appellant commenced studying the Diploma by 6 December 2015, he would have been a full-time student.[10]

12 The Tribunal pointed to the need to meet the definition at the time of death, and that at that time, the appellant was on a 'gap year' and working.[11]

13 The Tribunal noted the 'timing requirement' directed attention to the position as at the date of death and said:

There is no discretion reposed in the TAC, and hence no discretion available to the Tribunal, to allow a benefit where a child of a person killed in a transport accident has successfully enrolled for, but not commenced, a course of study at the time of death of his or her parent.[12]

14 After referring to the decision of the Tribunal in Hannon v Transport Accident Commission,[13] the Tribunal then concluded, in paragraphs [36] to [39]:

Whether or not the decision in Hannon is still relevant despite the change in the definition of 'dependent child', I do not see any difficulty with describing a person who has commenced his or her studies as being engaged in full-time study in the context of weekends, semester breaks or between years of the one course. However, it is a different situation where the person has yet to commence his or her course of study.

In this regard, I can see (and [counsel for TAC] conceded) that one situation which may give rise to an anomalous outcome is where a student completes one course of study (for example, his or her VCE) and has enrolled for another course (for example, a commerce degree at university), but has yet to commence that other course. It does seem harsh to deny a dependency benefit if that person's parent happens to die in that short window.

However, the effect of the applicant's interpretation is that a dependency benefit would be payable to anyone whose parent had died in a transport accident in Victoria at a time the person had enrolled for a course of study, whether or not he or she intended to pursue that study or in fact went on to do so. Such an outcome would be equally anomalous, particularly where (as in this case), the relevant course will not even start for a number of months.

That it would take extra words to make any extension of the concept of 'full-time student' work in the myriad of situations that might arise points against departing from the plain and ordinary meaning of the words employed.

15 Two things emerge clearly enough from the Reasons. First, the Tribunal held that in order to be a full-time student the person must be engaged in study; and second, this requires that the person has commenced his or her studies. Although perhaps less clear, reading the reasons fairly, I am satisfied that it also held that each course has to be considered separately, with the result that a child is not a full-time student in the period between the end of one course and the commencement of the next.

16 The appellant submits that the Tribunal impermissibly adopted what it regarded to be the plain and ordinary meaning of the phrase 'full-time student' without regard to its statutory context, and the purpose of the provision including, most importantly, that s 59 is a beneficial provision.

17 The appellant relied on a passage in the reasons for judgment of Bongiorno J in State Trustees Ltd v Transport Accident Commission, in which his Honour identified the Act as beneficial legislation to establish a scheme of compensation and that it would be 'inappropriate to exclude an accepted meaning of a word where to do so would limit or exclude an otherwise appropriate entitlement to benefits.'[14]

18 The appellant identifies two alternative ordinary meanings, namely, 'someone who studies a subject systematically or in detail' or 'a person engaged in or dedicated to the pursuit of knowledge'.

19 In oral submissions, the appellant contended that the effect or construction of a term whose meaning or interpretation is established is a question of law and whether facts found fall within a statute properly construed is generally a question of law.[15] That will always be so where, on the facts found by the Tribunal, only one answer to the statutory question is open.

20 The respondent submits that no question of law arises on the appellant's case and therefore the application cannot succeed.[16] It relies on the following passage of the Court of Appeal in Chopra v Department of Education and Training, placing emphasis on the underlined words:

The principles for distinguishing between questions of law, questions of fact and mixed questions of law and fact are well established. However, those principles are difficult to apply in practice. What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law. Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law. However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.[17]

21 The respondent also relies on the following observation of Gordon J in Bell v Commissioner of Taxation:

... the construction of a statute on an appeal involved a two-stage inquiry. First, it is a question of law whether the words used bear their ordinary meaning or some other, special meaning. Secondly, if the words bear their ordinary meaning, it is primarily a question of fact, not law, as to what that meaning is and whether, there being different conclusions reasonably open, a particular set of facts comes within that meaning.[18]

22 In that respect, the respondent submits that the phrase 'full-time student' appearing in s 59 of the Act bears its ordinary meaning. From that premise, it follows that the ordinary meaning of the words is to be determined as a matter of fact. The Tribunal concluded, correctly, it was submitted, that the meaning of the phrase 'full-time student' 'requires a person to be engaged in study'[19] and then went on to conclude, as a matter of fact, that he was not engaged in study at the time of the fatal accident.

23 In Vetter v Lake Macquarie City Council, a majority of the High Court noted that 'whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law.'[20] That formulation leaves open the possibility that the application of the facts to a statutory phrase may involve a mixed question of fact and law and not involve a question of law within the scope of s 148 of the VCAT Act. That will be so where the question of whether the facts found fall with the statutory phrase is not susceptible to only one correct answer. Within that area of choice, the decision of the repository of the power will generally be one of fact.[21]

24 As explained by Hill J in Sharp Corporation of Australia Pty Ltd v Collector of Customs:

... where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.[22]

25 On the other hand, where, on the facts, only one answer is open, in other words, the facts are necessarily within or outside the statutory bounds, then there is exclusively a question of law.[23] As explained by the High Court in Vetter, by reference to Mason J's judgment in Hope v Bathurst City Council ('Hope'):

... when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour's reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open.[24]

26 To put it another way, 'whilst the question of whether a given set of facts could fall within such a standard is a question of law the question of whether a particular set of facts does do so is a question of fact.'[25]

27 Applying those principles to the definition of 'full-time student', I accept that whether on a particular set of facts a child is a full-time student is generally a question of fact. That is subject to the qualification that where, on a given set of facts only one answer is open, then the correct answer is one of law. Of course, that proceeds on the premise that the decision maker has, in the first place, correctly construed the term.

28 Matters that inform the relevant assessment will likely include enrolment status, whether the study relates to a course of study or is more episodic or discrete, the type and duration of the course, the number of attendance or contact hours required and perhaps the nature of the commitment of the student, including whether they are otherwise employed on a full-time or part-time basis. Whether the educational institution treats the course or the level of study as full-time may also be relevant.

29 Although the term 'full-time student' does not have a legal or technical meaning and its application is generally a question of fact, it is important to recognise the context in which it is used. Two aspects of context are of note.

30 First, although the definition is to be applied at a particular point in time, namely, the date of the injury or death of the parent, the words 'full-time student' have to be seen in a practical context in which the academic year (both secondary and tertiary) is shorter than the calendar year; there are periods of time within the academic year in which the student will be away from the institution, including mid-semester breaks and breaks between years of study; class contact hours will vary from course to course; and continuity of study generally depends on successful completion of subjects and successful enrolment for the following period.

31 Further, the definition of full-time student applies to children within the age range of 16 to 24 years. Given that span of years, it is likely to cover successive types of education, both secondary and tertiary, and it is readily conceivable that the person may not be a full-time student continuously throughout the period but for some lesser period of time.

32 Thus, in context, the phrase 'full-time' does not mean continuously present or present for any fixed hours or period of time or continuously actively engaged in study. The level of commitment in time and effort to be a full-time student might be very different to that necessary to constitute full-time employment. The paraphrase adopted by the Tribunal of 'engaged in study' is apt to distract attention away from these important features.

33 Second, the purpose of the provision is to provide compensation for dependents of the person who is injured or dies in the transport accident. The Act provides for both a dependent child and a dependent partner. In relation to children over the age of 16, it is insufficient that the child is a dependent, he or she must also be a full-time student. The provision thus recognises, and singles out for benefits, full-time students under the age of 25. No doubt this is informed by the fact that persons who are over 16 and not studying full-time are in a position, at least theoretically, to become financially independent. Students are obviously less so, at least for the duration of their studies. No doubt the provision also reflects the social utility of education and protects against a student being forced to give up study due to the loss of, or injury to, a supporting parent in a transport accident.

34 In this regard, the observations of Bongiorno J in State Trustees as to the beneficial nature of the provision come into play. Such precepts are not determinative where the language of the particular provision does not allow it and it is the text where the constructional task must commence and end. The task remains one of construction of the text and not simply giving effect to general concepts of advancement or beneficence. However, where different meanings are available, the approach taken by Bongiorno J is helpful in determining which alternative the legislature intended.

35 In my view, having regard to the text of the statute, and its context, the phrase 'full-time student' refers to the status of the child that may not be fully revealed by a snapshot on a particular day. The status must take into account that there is more to being a student than simply attending class. So much was recognised by the Tribunal when it accepted that a student is engaged in study during mid-semester and end of year breaks. That said, for the purposes of the scheme, it must be possible to discern both the commencement and end point at which a child is a full-time student. The latter aspect also follows from the requirement in ss 59(3) and (6) that the weekly payments and education allowance end if the child ceases to be a full-time student before he or she turns 18.

36 In my opinion, consistent with the submission advanced by the respondent below, the Tribunal construed the definition as requiring the person to be engaged in study, meaning that the person had actually commenced a particular course and that this requirement qualified the concept of engaging in study. The Tribunal treated commencement of tuition as an indispensable legal requirement for the person to be a full-time student. I reject the respondent's submission that the Tribunal was doing no more than determining as a matter of fact whether, at the relevant date, the appellant was engaged in study.

37 First, the Tribunal said expressly at [33] that there was no discretion to allow a benefit for a child who had 'successfully enrolled for, but not commenced, a course of study at the time of death'.

38 Second, the Tribunal acknowledged the anomaly this creates for a student who completes one course of study and has enrolled in another course but has yet to commence the second course.[26] In this respect, the Tribunal adopted the example provided by the respondent in argument before the Tribunal, of the period between completion of year 12 VCE and the commencement of university. [27] In that period, on the Tribunal's approach, a person is incapable of being a full-time student. It is also clear from this example that the Tribal considered that 'engaged in study' meant engaged in a particular course of study.

39 Third, in assessing whether the appellant was a full-time student, the Tribunal did not treat the fact that the course had not commenced as a matter to be weighed in the balance. Nor did it rely on other facts, including that the appellant was working full-time at the time of his enrolment in September 2015, as being relevant to his status. Although the Tribunal referred to that evidence as part of its narrative of events, it did not bring it to account in its critical findings, and, as I have explained, on a fair reading it regarded the fact that the course had not commenced as decisive.

40 In my view, the unduly narrow approach taken by the Tribunal is revealed by its approach to the gap between year 12 and first year university. The Tribunal concluded that during this period the person could not be a full-time student.[28] In my view, the ordinary meaning of the term 'full-time student', reinforced by the context to which I have referred, is plainly capable of extending to a student who has completed year 12, has either applied for an offer of a tertiary place or enrolled in a tertiary course, and is waiting for the academic period to commence. Indeed, on those facts, and assuming that the person has not acted inconsistently with continuing study at the next opportunity, I am persuaded that only an affirmative answer is open to the question of whether the child is a full-time student during that interregnum. Yet the Tribunal concluded that such a result is foreclosed by the terms of the legislation.

41 Moreover, the approach taken by the Tribunal does not advance the purpose of the provision. The dependent child who is waiting to commence his or her tertiary studies may be in a poor position to achieve financial independence without abandoning full-time study. In substance, he or she would be in materially the same position as a student who has turned up for class on day one. No rational purpose would be served by differential treatment in circumstances where the language, in its ordinary or usual sense, would be apt to cover both situations.

42 In this Court, the respondent took a different tack in relation to the interregnum between year 12 and first year university, contending that, as a matter of fact, throughout this period the child could continue to be a full-time student provided that they intended to go on to study, put themselves in a position to do so and did not act inconsistently with remaining a full-time student. Specifically, it was submitted that it was not necessary that the child be engaged in the same course of study over the relevant period of time. I agree that this would be an available approach to a student in the gap between year 12 and university. However, it is not the approach taken by the Tribunal. Nor, I might add, was it the approach urged upon the Tribunal by the respondent.

43 It follows that the Tribunal put a gloss on the definition that is not warranted by either the text or its purpose by requiring the course to have commenced. In doing so, it committed an error of law.

44 Finally, I add that extending the definition to cover students whose tuition has not yet commenced would not, as the Tribunal believed, introduce an anomaly. The Tribunal considered that this would catch the 'equally anomalous' situation of a person enrolled in a course of study, whether or not he or she intended to pursue that study or in fact went on to do so.[29]

45 However, given that the criterion for the benefits arises at the time of the death or injury, there would always be the possibility that the child might discontinue his or her studies immediately thereafter. It is not an anomaly that arises only in the case of a student who has not actually commenced tuition and does not assist with the constructional question that arises.

46 In my view, the appellant has succeeded in establishing an error of law on the construction of the Act adopted by the Tribunal. Leave to appeal should be granted, the appeal allowed and the decision of the Tribunal set aside.

47 Section 148(7) of the VCAT Act provides for orders that may be made on an appeal, which include orders to set aside the order of the Tribunal,[30] remitting the proceeding to be heard and decided again[31] or 'an order that the Tribunal could have made in the proceeding'.[32]

48 In Osland v Sec Department of Justice, French CJ, Gummow and Bell JJ said:

The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must ... be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.[33]

49 The respondent accepted that in the event that I upheld the appeal and set aside the decision, I could remit the matter to the Tribunal for it to decide the matter again or, given that the primary facts are not in dispute and because this Court is in an equal position to assess those facts, it would be open to this Court to make a substantive decision in the place of the decision of the Tribunal without the need for a remittal. In my view, that is the course that I should take.

50 Whether the appellant is or is not a full-time student on uncontested facts does not involve any policy choice, judgment or opinion that is best suited for determination by the TAC or the Tribunal. As recognised by the respondent, this Court is in an equal position to assess the factual matters.

51 In any event, I am persuaded that on the uncontested facts, the question of whether, as at the date of his mother's death the appellant was a full-time student, admits of a single, affirmative answer. The appellant had deferred his studies in 2015 and intended to commence tertiary study at the start of 2016. In September 2015, he enrolled in the course, which was scheduled to commence on 1 February 2016. By his enrolment, the appellant was ready to resume his studies as soon as the course commenced. He was relevantly a full-time student at that time. This conclusion also means that, in addition to the error of construction I have found above, the decision involved an error of law of the type identified by Mason J in Hope. That is, on the facts, only one answer was open. This Court should give effect to that conclusion.

52 Had I concluded that more than one answer was open and the result turned on matters of fact and degree, I would have arrived at the same conclusion. The fact that the appellant had completed his gap year, he was enrolled in his next course of full-time study in September 2015, before the accident occurred in December 2015, and at the time of his mother's death he was in a position to commence that course of study, means that he was a dependent child within the meaning of the definition.

53 It follows that this Court should make the same decision that the Tribunal would have made had it been satisfied that the appellant was a full-time student at the relevant date. The decision of the TAC should be set aside and in substitution there should be decision that the appellant was, in relation to his mother, a dependent child at the time of his mother's death.

54 I would grant leave to appeal, allow the appeal and set aside the decision of the Tribunal dated 24 September 2019. I would also set aside the decision of the respondent dated 8 March 2016 to deny the appellant benefits under s 59 of the Act, and substitute for that decision one which provides that the appellant was a 'dependent child' for the purposes of that provision at the time of his mother's death.

55 I will hear the parties on the precise form of order to give effect to these reasons and on the question of costs.

[1] Marsh v Transport Accident Commission (Review and Regulation) [2019] VCAT 1463, [1] ('Reasons').

[13] [2002] VCAT 118 (Megay SM) ('Hannon'). Hannon concerned an earlier form of the definition of 'dependent child' in s 3 which did not expressly require the assessment to be undertaken at the precise time of death. The Tribunal held that it was necessary to have regard to events and facts that occurred within a 'reasonable temporal proximity', both before and after, the death. Since the decision in Hannon, the definition of 'dependent child' has been amended to include the words 'as at the time of death or injury'.

[14] [2002] VSC 428; (2002) 6 VR 359, 365-366 [25]; [2002] VSC 428 ('State Trustees').

[15] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287; [1993] FCA 456, [23] (Neaves, French and Cooper JJ).

[16] VCAT Act s 148; Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, [17]-[19]; [2010] HCA 24 (French CJ, Gummow and Bell JJ).

[17] [2019] VSCA 298, [88] (Tate, Whelan and Kyrou JJA) (emphasis added) (citations omitted).

[18] [2012] FCA 1042, [39].

[20] (2001) 202 CLR 439, 450 [24]; [2001] HCA 12 (Gleeson CJ, Gummow and Callinan JJ) ('Vetter').

[21] Ibid; Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, 383-385 [192]-[202]; [2015] FCAFC 92 (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) ('Haritos').

[22] Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; (1995) 59 FCR 6, 16; [1995] FCA 707 ('Sharp Corporation').

[23] The Australian Gas Light Co v The Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126, 137-138 (Jordan CJ); Sharp Corporation [1995] FCA 1521; (1995) 59 FCR 6, 12-13; [1995] FCA 707 (Davies and Beazley JJ, with whom Hill J agreed); Haritos [2015] FCAFC 92; (2015) 233 FCR 315, 360-361 [126]; [2015] FCAFC 92 (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

[24] (2001) 202 CLR 439, 451 [27]; [2001] HCA 12 (Gleeson CJ, Gummow and Callinan JJ) (citations omitted).

[25] Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301, 317 [49]; [2018] FCAFC 93 (Perram J) (emphasis in original) (citations omitted).

[27] Transcript of hearing 19 September 2019, 24, 26-27.

[33] [2010] HCA 24; (2010) 241 CLR 320, 332-333 [20]; [2010] HCA 24 (citations omitted). See also Hayne and Kiefel JJ at 353 [78].