Defining ‘Full Time Student’ for beneficial legislation

Whilst on a ‘gap year’ in 2015, post completion of Year 12 in 2014, Keane Marsh’s mother tragically passed away in a motor vehicle accident on the 6th December 2015. 

During that year, Mr Marsh had worked full-time, however at the time of the accident he had enrolled as a full-time student, where he had received a student number and enrolment details for studies to commence on 1 February 2016.

Mr Marsh’s father (who was separated from Keane Marsh’s mother), submitted a Funeral and Dependency Benefits Claim form with the Transport Accident Commission (TAC) under the Transport Accident Act 1986. 

The Act provides:

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.

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.

Relevantly, section 59(1) of the Act supports:

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.

The weekly payments and education allowance are payable until the child (relevantly) ‘ceases to be a full-time student’.

The Commission in framing their case and the Tribunal in deciding the matter, took the literal and narrow view of ‘full-time student’, that being, ‘...the person must be engaged in study; and second this requires that the person has commenced his or her studies’. 

On these grounds, Mr Marsh’s dependency claim was refused, further citing that had Mr Marsh “commenced studying the Diploma by 6 December 2015, he would have been a full-time student.”

However, on appeal to the Supreme Court of Victoria, Niall JA decided in favour of
Mr Marsh on 1 May 2020.

His honour addressed: 

[32.] ...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.

Additionally,

[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.

With no case law to reference the definition of ‘full-time student’, Mr Marsh’s legal counsel brought to light the reasons for the judgment of Bongiorno J in State Trustees Ltd v Transport Accident Commission, in which his Honour identified, 

“[17] ...the Act [Transport Accident Act 1986 (VIC)] 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.’

Further, His Honour stated that,

[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.”

This unique case of Marsh v Transport Accident Commission [2020] VSC 228 now provides that a full-time student can be:

“[40.] ...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.”