The decision of the respondent, communicated by letter dated 8 March 2016, to deny the payment of benefits to the applicant under section 59 of the Transport Accident Act 1986 (Vic) is confirmed.

1. On 6 December 2015, Catherine Marsh died in a tragic transport accident when the car in which she was travelling home, after participating in the Great Victorian Bike Ride, was hit by an oncoming vehicle that had veered onto the wrong side of the Midland Highway.
2. On 23 February 2016, Simon Marsh (the husband of the deceased, albeit separated) submitted a Funeral and Dependency Benefits Claim Form.
3. The funeral benefits were paid by the Transport Accident Commission (TAC) and are not the subject of this review.
4. Dependency benefits were claimed for Mr Keane Marsh, the son of Catherine and Simon Marsh, who was then 19 years of age. Attached to the form was a letter from the College of Event Management, a registered training organisation, confirming that Mr Marsh had been enrolled full time for a Diploma of Events commencing on 1 February 2016.
5. On 2 March 2016, Mr Marsh's father called the TAC in relation to the claim and advised the TAC that, in 2015, his son was not studying, but rather was on a 'gap year' following completion of year 12 in the previous year. This was confirmed by Mr Marsh in a subsequent call he made to the TAC on 3 March 2016.
6. Mr Marsh gave brief evidence at the hearing that he worked full time at Jaycar Electronics from February to November 2015, and then on a casual basis with a couple of hospitality and events companies for the remainder of that year. At the time of his mother's death, Mr Marsh was working 15 to 25 hours a week.
7. On 8 March 2016, the TAC sent Mr Keane Marsh a letter stating that the TAC 'is unable to accept your claim for dependency benefits as you do not qualify as a dependent child of the late Catherine Judith Marsh ... because you are over the age of 16 and not a full-time student' (Decision).
8. The section 49 statement lodged by the TAC explains that the Decision was reached by reference to section 59 of the Transport Accident Act 1986 (Vic) (TA Act) which provides that the TAC is liable to provide benefits where 'a person dies as a result of a transport accident and leaves a dependent child', with a dependent child defined in section 3 (so far as relevant) as:

in relation to a person means a child of that person who, as at the time of death ... of that person -

(b) has attained the age of 16 years but is under the age of 25 years and is a full-time student ...

and would, but for the ... 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.

1. On 18 September 2017, Mr Marsh applied for review of the Decision under section 77 of the TA Act which provides that a 'person whose interests are affected by a decision of the [TAC] may apply to the Tribunal for review of the decision'.
2. The hearing was held on 19 September 2019.
3. As the facts were not in dispute, apart from the brief evidence given by Mr Marsh, the hearing involved submissions being made by counsel for Mr Marsh and the TAC.

1. Ms Gold, who represented Mr Marsh at the hearing, handed up short written submissions dated 19 September 2019 (Applicant's Submissions), together with a bundle of authorities.
2. The parties agree that 'full time student' is not defined in the TA Act.
3. After referring to the comments of Bongiorno J in State Trustees Ltd v Transport Accident Commission[1] (State Trustees) that the TA Act is 'beneficial legislation' and Bell J in Wilson v Transport Accident Commission[2] that 'beneficial legislation, such as the [TA Act] is interpreted beneficially, not restrictively, consistently with its purpose', it is contended for Mr Marsh that:[3]

It is well accepted that the [TA] Act is beneficial legislation which should be interpreted liberally, with ambiguities resolved in favour of promoting its social purpose.

There are many circumstances where a "full time student" would not actively engaged [sic] in periods of study, for example the weekend, term holidays, end of year holidays. The Applicant contends that this is an effectively similar circumstance. This is not a case where his intention to become a student was merely a proposal. To the contrary, like a returning student from holiday, the Applicant's intention to participate in the course of study was manifest; he had confirmed enrolment, he was registered as a student, and was due to (and in fact did) participate in study in the next commencing term.

1. Reference is then made to section 541B of the Social Security Act 1991 (Cth) where the phrase 'undertaking full time study' is extended to apply to a person enrolled in a course of education at an educational institution and intends to undertake that course in the next study period. It is said that this 'illustrates it is no strain to the language of the [TA Act] to interpret the phrase "full time student" in the contended for way',[5] noting that in State Trustees, Bongiorno J said 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'.[6]

1. Mr Young, who represented the TAC at the hearing, indicated that the TAC accepts that Mr Marsh was at least partially dependent on his mother at the time of her death. Accordingly, the only issue in dispute is whether Mr Marsh was a full-time student at the time of his mother's death.
2. Mr Young also handed up short written submissions dated 19 September 2019 (TAC's Submissions), together with online dictionary definitions of 'student' and section 2.1.1 of the Education and Training Reform Act 2006 (Vic) (ETR Act).
3. In his oral submissions, Mr Young said the TAC takes issue with the description of the TA Act as 'beneficial legislation' given that the benefits it provides are available only on conditional and limited terms.
4. He went on to say that the definition of 'dependent child' in section 3 focuses on a person's status as at the time of death of the person in respect of whom the dependency benefit is being sought and that 'plainly enough', to be a full-time student, a person must be both a 'student' and be so on a full-time basis.[7]
5. The TAC submits the starting point to interpretation is necessarily the ordinary meaning of the terms used and, having regard to the dictionary definitions of student,[8] it is necessary that the relevant course of study 'have actually commenced and the person is engaged in the course'.[9]
6. Further, to be 'full-time', the 'studying must be more than intermittent and indeed must be at such a level of intensity as to preclude doing something else, such as work, on a full-time basis'.[10]
7. The TAC says there is 'no factual basis for saying that as at 6 December 2015 [Mr Marsh] was engaged in the [Diploma of Events] course' given:[11]
   • He was working on a casual basis.
   • He was not then studying anything, as his course did not commence for another two months.
   • He could have changed his mind at any time, deferring the course or withdrawing and there was nothing precluding him from taking up full time work.
8. In his oral submissions, Mr Young suggested that the context of the legislation also supports the TAC's submissions. In this regard, paragraph (a) of the definition of 'dependent child' provides that a child who is dependent on their parent and is then less than 16 years of age is automatically entitled to benefits (ie. whether or not engaged in full-time studies). This can be explained by reference to section 2.1.1 of the ETR Act which imposes a duty on a parent to enrol a child under the age of 17 at a registered school[12] and to ensure the child attends the school at all times when the school is open for instruction. As such, engagement in a course of study is a consistent requirement across both limbs of the definition.

1. In Drake v Minister for Immigration and Ethnic Affairs,[13] Bowen CJ and Deane J said that the role of a tribunal in undertaking a review on the merits is to make the 'correct or preferable' decision 'on the material before the Tribunal'.[14]
2. If only one decision is available on the application of the law to the relevant facts, then that will be the correct decision; however, if the legislation under review provides a discretion, a tribunal must make the decision that is preferable among the possible decisions available.[15]
3. Section 59 of the TA Act only renders the TAC liable to pay benefits to a person who is 'a dependent child' of another person who dies as a result of a transport accident, where the child would (but for the accident) have been economically dependent on that other person. The key phrase, dependent child, is not defined in section 59; rather, it is defined in section 3.
4. There is no debate that Mr Marsh was 19 at the date of his mother's death and so the relevant part of the definition requires that 'as at the time of [his mother's] death', he was 'a full-time student'. The TAC accepts that, had Mr Marsh commenced studying the Diploma of Event Management by 6 December 2015, he would qualify as a full-time student.
5. I have not been referred to or been able to find any decision of the Tribunal or a court which discusses this aspect of the definition of dependent child.
6. However, in Hannon v Transport Accident Commission [2002] VCAT 118 (Hannon), Senior Member Megay had occasion to consider the economic support aspect, noting at [30]:

It is necessary for me to make some preliminary comments about the operation of section 59. The section is framed in the present tense. What seems clear to me is that the section is not to be interpreted as applying only at the precise date of death. In my view the requirements of the section have to be considered contemporaneously with the triggering event, that is the death of Patrick Hannon. By that I mean a consideration having regard to those events and facts that occurred within a reasonable temporal proximity to the date of Patrick Hannon's death. It thus follows that a consideration of whether or not the applicant was dependent on his father requires me to look at the factors in the months leading up to the death. Similarly a consideration of whether or not he was provided with economic support by his mother requires a consideration of a complex of matters which followed (albeit in short compass) the death of his father as well as the matters preceding the death.

1. It is necessary to observe that the definition of 'dependent child' considered in Hannon did not include the words 'as at the time of death'.
2. In my view, the timing requirement in the current definition of dependent child is clear. In this regard, Mr Marsh was not, on his own evidence, a full-time student on 6 December 2015 when his mother died. Rather, he was on a 'gap year' and working. Indeed, he was working on the day of his mother's death.[16]
3. 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.
4. I do not accept that applying a definitional provision in Commonwealth legislation to determine the meaning of text in state-based legislation dealing with a different area of law is a valid approach to statutory interpretation.
5. As indicated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[17] the 'language which has actually been employed in the text of the legislation is the surest guide to legislative intention'. In the absence of any definition of the phrase 'full-time student', I agree with the TAC's submission that it should be given its ordinary meaning and that this requires a person to be engaged in study.
6. 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.
7. In this regard, I can see (and Mr Young 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.
8. 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.
9. 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.
10. In my view, for the above reasons, the correct decision is that Mr Keane Marsh is not eligible for benefits under section 59 of the TA Act and the Decision should be confirmed.

[1] [2002] VSC 428; (2002) 6 VR 359 at 362-366.

[2] [2017] VSC 209 [46].

[8] Being 'someone who is engaged in a course of study and instruction' (Macquarie Dictionary) or 'a person engaged in or deducted to the pursuit of knowledge' (Oxford English Dictionary).

[13] (1979) 24 ALR 577.

[15] K O'Callaghan and M Howard, 'Promoting administrative justice: the correct and preferable decision and the role of government policy in the determination', (2013) 32(1) UQLawJl 169, 173.

[16] Affidavit of Keane Adam Marsh dated 3 August 2018 [12].

[17] [2009] HCA 41; (2009) 239 CLR 27 [47].