Hardiman v Parramatta City Council

[2025] NSWCATAD 259

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hardiman v Parramatta City Council [2025] NSWCATAD 259

Hearing dates:

17 and 18 February 2025; Decision reserved on 24 April 2025

Date of orders:

31 July 2025

Decision date:

31 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

H J Dixon SC, Senior Member
K Stubbs, General Member

Decision:

(1) The application is granted in part.

(2) The Respondent discriminated against the Applicant in the terms it provided services to a reserved in contravention of s 49M (1)(b) of the Anti-Discrimination Act 1977.

(3) The matter is to be relisted to deal with relief, if any, to be granted.

Catchwords:

Human Rights – disability discrimination – indirect discrimination – council services

Legislation Cited:

Anti-Discrimination Act 1977, ss 4, 4A, 49A, 49B, 49C, 49M

Civil and Administrative Tribunal Act 2013, ss 36

Disability Discrimination Act 1992 (Cth)

Equal Opportunity Act 1984 (VIC), s 17

Racial Discrimination Act 1975 (Cth), s 9

Sex Discrimination Act 1984 (Cth)

Cases Cited:

Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165

Catholic Education Office v Clarke [2004] FCAFC 197

Department of Foreign Affairs v Styles (1989) 23 FCR 251

Hurst v State of Queensland [2006] FCAFC 100

Mandla v Dowell Lee [1993] 2 AC 548

Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1

Secretary, Department of Education v FSO [2023] NSWCATAP 160

Sklavos v Australian College of Dermatologists (2017) FCAFC 128; 256 FCR 247

State of Victoria v Turner [2009] VSC 66

Waters v Public Transport Corporation (1991) CLR 349

Wright v Commissioner of Police [2014] NSWCATAP 67

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Pamela Hardiman (Applicant)
The City of Parramatta Council (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
McCabes Lawyers (Respondent)

Counsel:
B Fogarty (Respondent)

File Number(s):

2024/00196887

Publication restriction:

Nil

reasons for decision

1. On 26 October 2023, Ms Pamela Hardiman (“the Applicant”) made a complaint under the provisions of the Anti-Discrimination Act 1977 (“the ADA”) to Anti-Discrimination NSW against the Parramatta City Council (“the Council”) alleging disability discrimination in the statutory area of goods and services.

2. The complaint concerned access to the Council’s off-leash dog park, the Dan Mahoney Reserve (“the Reserve”), located between Gladstone Street and Isabella Street, North Parramatta in New South Wales.

3. The essence of the complaint, as summarised by the Delegate of the President of Anti-Discrimination NSW, was that the Applicant, an amputee, left leg from hip, and who uses crutches to assist her mobility, uses the facilities of the Reserve for recreational purposes. However, due to her disability she finds the Reserve’s condition hazardous because there is no safe off-street parking and access to the Reserve is from a busy road. Closure of the toilets in the Reserve was also an issue.

4. The complaint was declined by a delegate of Anti-Discrimination NSW “under s 92(1)(a)(vi) of the Act, namely that the Respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of”.

5. The Applicant then sought leave of the Tribunal to proceed with the complaint.

6. On 15 August 2024, the Tribunal, differently constituted, granted the Applicant leave to proceed with the complaint: [2024] NSWCATAD 242.

Representation Before the Tribunal

7. The Applicant was self-represented. It was apparent that she had some difficulty in articulating her case and found it stressful. In our view, this is a case where it is appropriate for the Tribunal to give the correct legal construction to her arguable points which have not been articulated with complete clarity: Secretary, Department of Education v FSO [2023] NSWCATAP 160 at [10]-[11].

8. The Respondent was represented by Counsel and Solicitors.

Claim and Points of Defence

9. The Applicant relied on a document described as a Statement of Claim dated 17 November 2024.

10. The Respondent filed Points of Defence and written submissions on 20 January 2025.

Hearing

11. The hearing occurred over two days on 17 and 18 February 2025.

12. The Applicant gave evidence and was cross examined. She also provided written evidence from Mr M Deryk, Ms A Standish, each of whom was cross examined, and written material from Ms J Janaway.

13. The Respondent relied on an affidavit of Ms M Burke, the Acting Group Manager of Regulatory Services of the Regulatory Services Unit of the Council, dated 20 December 2024 and the affidavit of Mr Hamish Murray, the Universal Design and Officer Project Officer of the Council dated 20 December 2024. Each of the Respondent’s witnesses was cross examined.

14. On 13 January 2025, the Applicant filed and served a document described as “Response to Parramatta Council’s Evidence”.

15. On 18 February 2025, the Respondent closed its evidentiary case. The parties made closing submissions.

16. Following this, the Tribunal enquired whether the parties wished to consider engaging in discussions to reach an agreed outcome. That proposition was accepted.

17. Counsel for the Council then sought leave to lead further evidence and make submissions at a later date as a result of evidence which had been given by the Applicant during cross examination and by Mr Murray whilst he was being cross examined.

18. The Tribunal was initially reluctant to grant the Council’s request given the length of time that had elapsed since the filing of the application but, nevertheless acceded to the request and made orders, by consent, granting leave to the Respondent to file and serve further evidence by 25 March 2025, with a right of reply given to the Applicant.

19. The Respondent did not file and serve any evidence by 25 March 2025.

20. The Respondent thereafter sought additional time to file and serve evidence stating in correspondence to the Tribunal that changes within positions of the Council and availability of potential witnesses required additional time.

21. The Applicant opposed any extension of time and stated in correspondence that she suffered prejudice by further delay and pointed to the stress imposed on her by the ongoing process.

22. The Tribunal by order dated 3 April 2025 granted leave to the Council to file further evidence by 4.00pm on 11 April 2025, balancing the respective interests of the parties.

23. As at 23 April 2025, the Respondent had not filed any evidence. The Respondent thus did not avail itself of the leave granted, nor did it make an application for an extension of time to do so after non-compliance with the orders of 3 April 2025.

24. The Respondent had approximately 9 weeks from 18 February 2025 to file further evidence, or to approach the Tribunal for a further extension. It did not do so.

25. In the circumstances the Tribunal, having regard for s 36 of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”), and prejudice to the Applicant by reason of further delay reserved its decision by order dated 24 April 2025 with reasons to be published in due course.

Allegations and Relief Sought in the Application and Points of Claim

26. The Applicant’s claims are essentially allegations of contraventions of the ADA by the Council concerning issues of access to and use of the Reserve that she alleges she experienced on specified dates up and until 26 October 2023. There are also some other unparticularised complaints in relation to other reserves within the Council’s area of responsibility.

27. The Applicant’s allegations in relation to access and use of the Reserve arise on the ground of a physical disability on the basis of her being an amputee.

28. With the assistance of the Respondent’s analysis of the claim, and providing a degree of latitude to the Applicant in formulating her claim, it appears to be based on the following:

1. Physical difficulties she had entering and exiting the Reserve with a dog or dogs.

2. No accessible parking close to the entrance of the Reserve with sufficient room for a person with mobility disability to be able to independently and safely exit or enter the vehicle without being exposed to the danger of oncoming traffic.

3. The location of an allocated disabled parking space relative to the Reserve too far from the entrance on Gladstone Street on the opposite side of the road to the Reserve.

4. The lack of more disabled parking spaces closer than the allocated disabled parking space to the gate/access point on Gladstone Street.

5. The location of kerb ramps from the road to the footpath alongside the Reserve.

6. Difficulty in opening the gate/access point to the Reserve.

7. Areas in the Reserve affected by flood following heavy rainfall causing the ground to become muddy, soggy, slippery and smelly (especially the Gladstone Street side of the Reserve).

8. A lack of paths leading into the Reserve.

9. A lack of parking due to sporting events and users of the Reserve parking illegally on footpaths.

10. A lack of toilet facilities at the Reserve.

29. It is apparent that the Applicant seeks to rely on indirect discrimination under s 49B(1)(b) of the ADA and no complaint is made out on the basis of direct discrimination.

30. The application and Points of Claim appear to seek the following forms of relief:

1. that the Council provide “safe access for all people with disabilities to enter and exit the Reserve with their companion dogs or assistance dogs”;

2. that the Council provide more disabled parking that is close to the entrance to the Reserve;

3. that the Council reopen the toilets at the Reserve.

Council’s Response to the Allegations and Relief Sought

31. The Council accepts that the Applicant has a form of mobility or physical disability as defined in s 4 of the ADA being an amputee from the hip.

32. The Council disputes that:

1. the Applicant’s mobility is so impaired by her disability as to prevent her from accessing and using the Reserve in a no less favourable way than others without her disability;

2. accompaniment by an assistance animal is a characteristic that appertains generally to a person with her physical disability; and

3. the Applicant required, or requires, the use of her wheelchair.

Applicant’s Evidence

33. The Applicant’s evidence is to the effect that until 4 years ago she was able to independently walk her dogs at a different reserve, the Cowell’s Lane Reserve. She did so until the Council changed the reserve and she could no longer access the off-leash area. That was because the disabled parking was about 100 metres away from the entrance to the off-leash park. She says she requires accessible parking close to the entrance to the off-leash park that she wishes to visit. Since then, she has been unable to find any off-leash dog parks that she can legally, safely and independently access with her dogs.

34. The Reserve is the closest off-leash park to her home. It is, she says, the only off-leash park in the suburb of Parramatta. She complained that the Reserve is poorly maintained and is often hazardous.

35. The Gladstone Street side of the Reserve is the area that is most affected by flood and after heavy rain it is, she says, not accessible for her, or a person in a wheelchair. There are no paths in the park and her crutches get caught in the mud and she risks falling over.

36. As long as she has been going to the Reserve the toilets have not been open to the public and the Council has refused to provide an explanation to her for this. The Reserve is a busy park.

37. The Applicant states that she believes it is unreasonable to expect persons with a disability to have to cross a road which is busy at times, especially if they walk slowly and have a dog with them. She claims in her evidence that the disabled parking is too far from the entrance to new gates that have been installed onto the Reserve by the Council. She acknowledged that the Council has installed new gates on the Gladstone Street entrance which are about 50 metres down from the disabled parking area on the opposite side of the road in Gladstone Street.

38. There are times when there is no available parking for her adjacent to the Reserve. That occurs when there are sporting events in both the nearby parks. When that occurs she has no choice and must go home because she cannot find any parking close enough to the Reserve.

39. In her response to the Council’s evidence she says that in her experience a standard size parking space on busy roads can be hazardous for some people with disabilities. She requires lots of room to safely exit her car with her crutches.

40. The Applicant further said that she had a conversation with Mr Murray, the Respondent’s witness, at the Reserve around November or early December 2024. She stated that Mr Murray told her that he had done an assessment and recommended that the Council provide accessible disability parking close to the entrance of the Reserve in Isabella Street with direct access to the park. She stated that she was later informed by him that the Council had decided not to accept his recommendation. He was not able to provide an explanation for the rejection of his recommendation by the Council.

41. The Applicant said that going to the off-leash dog park is a wonderful experience and although she cannot get to walk the dogs she can watch them and get some exercise. She also can meet people and form friendships and in that way she can feel part of the community.

42. The Applicant stated that she does not drive to the Reserve anymore after nearly being hit by a car in Isabella Street while she was exiting her car a few months ago. It had got to the point where entering the Reserve has become too much of a risk for her to take and she just cannot do that anymore. She now only goes to the park on her days off when Mr Deryk can drive her and she can get out of the passenger side door.

43. Walking with crutches makes her fearful of slippery, hard, rough surfaces, rubbish on the ground and holes because she can slip and lose her balance. If she fell on a hard surface, such as a road, she could really hurt herself and she is fearful of getting out of the driver side of the car at the Reserve because if she fell over she could fall into the path of oncoming traffic.

44. The Applicant stated that the only safe access that is suitable for her (and all people with disability) is wide accessible disability parking close to the entrance providing direct access to the Reserve.

45. There are toilets in the nearby parks but, she says, they are just too far for her to access in time.

46. In cross examination the Applicant indicated that she cannot walk a dog on a lead because it would make her unstable.

47. At times she and Mr Deryk take two cars to the Reserve. Mr Deryk drives down with the dogs and later the Applicant would join them.

48. During cross examination she confirmed that her complaint was that she wanted safe access into the Reserve without herself walking the dogs into the Reserve. It was not an issue of walking the dogs at the same time as she seeks to enter because she cannot do that.

49. By reference to the Applicant’s photo in evidence of her seeking to get out of her vehicle with a bus approaching from the rear, she claimed that if she had extra room she could get out of the car more safely. Her concern was one of slipping.

50. In respect of crossing the road to access the Reserve the Applicant said that there was a higher risk for her than an able-bodied person. This applied to accessing the Reserve from Gladstone Street as well.

51. She said she did not access the Reserve from the accessible parking across the road in Gladstone Street.

52. The Applicant stated that she wants to safely access the Reserve to be with friends and dogs and the obstacle to her was traffic which scared her. It was too hard to do so from Isabella Street.

53. In respect of the option in Gladstone Street her complaint related to having to cross the road from the mobility parking area and the distance to the entry gate.

54. The main risk for the Applicant, she said, was the risk of falling when the traffic is too close. Getting out of her car risked falling, dropping her crutches and being hit by traffic.

55. The Applicant also tendered photographic evidence of parking in Gladstone Street on a weekend when there was a sporting event being held close by. The photo shows numerous cars parked illegally and blocking of access into the park. Another photo depicts buses and cars parked in Gladstone Street.

Evidence of Mr Deryk

56. A significant part of the written evidence of Mr Deryk is in the form of a submission about the Council being reluctant to assist persons with disability. That material is of no assistance to us.

57. Mr Deryk did confirm that he is the one who walks the dogs, in other words, the Applicant does not personally lead dogs on a lead into the Reserve. He agreed that it was not always a busy area and at times on weekdays he is able to find a car space in Isabella Street.

Evidence of Ms Standish

58. Ms Standish’s evidence was that she has been a regular user of the park over the past 3 years in order to exercise her dog and socialise with other dog owners. She regards the Reserve as an important and very popular community facility. She noted that in her view friends and acquaintances with physical disabilities find access to the Reserve difficult. She did not claim to have a physical disability.

59. Ms Standish went on to say that there is very limited parking bordering the Reserve that has sufficient width to allow safe exit from vehicles by people with walking aids or in wheelchairs. She noted that the only “wide” parking is a small stretch on Isabella Street and there was no signage here to limit the amount of time anyone can park there. For example, residents could, she said, park there permanently and it has also been used to park a school bus for days on end. Ms Standish is not an expert on safety issues of this kind.

Evidence of Ms Janaway

60. Ms Janaway’s statement reflected her enjoyment of the park, its size and the fact that dogs can mesh together with sufficient room.

61. She often drives her car to the Reserve but often finds parking very difficult in busy times. Ms Janaway does not claim to have a disability.

62. She finds the soil at times uneven or wet ground that requires her to be careful when in the Reserve so as not to fall over and has lost her balance a few times with an unexpected pothole or an unexpected dog playing and leaping and forcing her to regain balance.

Respondent’s Evidence

63. Ms Burke in her affidavit stated that there are 11 off-leash dog parks in the Local Government Area that are managed by the Council, some of which have off-site parking.

64. She described the Reserve as a large off-leash dog park which can be accessed from 4 pathways/access points including Isabella Street, Gladstone Street, Brabyn Street and Waugh Avenue.

65. The Reserve is approximately 33,000 square metres in size and is dedicated to, and solely used for, people letting their dogs off leash.

66. Ms Burke says that there are 3 main surrounding streets of the Reserve which provide on-street and off-street parking to the Applicant and other users of the Reserve including Gladstone Street which comprises of on-street parking on the South side, off-street parking on the North side and an accessible disabled parking space some distance away from the entrance into the Reserve.

67. There is also parking on Isabella Street, which has wide on-street parking, and also on-street parking in Brabyn Street (which from other evidence we know is a distance away from an entrance into the Reserve).

68. Her evidence is that, from her own, and from the experience of her rangers driving past the Reserve, generally there is ample parking available on all the surrounding streets including Gladstone, Isabella and Brabyn Streets.

69. Inspections by her and her rangers from 26 November 2024 to 3 December 2024 and 16 to 19 December 2024 indicated that there is very minimal traffic and parked traffic on the surrounding streets of the Reserve. This demonstrated to her that there is ample parking available and accessible to the Applicant and other users of the Reserve. Ms Burke sought to support this with annexure marked “D” to her affidavit containing photographic evidence of traffic and parking spaces on the dates identified above.

63. Ms Burke’s evidence then deals with the number of sporting events which are held nearly weekly at neighbouring fields. Ms Burke states that her analysis of the photos presented by the Applicant suggests that the Applicant attends the Reserve roughly between 9.00am and 2.00pm. She goes on to say that there are a number of sporting events which occur during those times during the cricket season, the touch football season, oztag, soccer, rugby league but on all other days when sporting events are not occurring she says that there is ample parking on the surrounding streets of the Reserve.

Mr Murray’s Evidence

71. Mr Murray states in his affidavit that he has been employed by the Council in his current role since 2019. The role involves ensuring the buildings and public spaces under the Council’s care are accessible. He also provides expert advice in matters related to accessibility, and provides expert evidence in proceedings in the Land and Environment Court.

72. Mr Murray has been involved in the building and construction industry since he was 16 years old, since 1980. He has been an Access Consultant for 15 years.

73. Mr Murray is a paraplegic as a result of an injury that he sustained in 2002.

74. In the same way as Ms Burke, he refers to the number of off-leash parks in the Council’s Local Government Area and the entry points to the Reserve.

75. He states that there are double entry accessible gates into the Reserve provided on Isabella and Gladstone Street.

76. Mr Murray then expresses various opinions in relation to access. First, he states that in his opinion these double gated access points are suitable in terms of accessibility for people with mobility impairment, including wheelchair users, and people who use a walking stick, crutch, or like disability aid.

77. Secondly, he says that he has seen the Applicant in the Reserve before and he understands she is an amputee and uses crutches to assist with mobility. In his opinion the same access points are also suitable in terms of accessibility for her. He excludes Waugh Avenue as there is limited amount of parking and is a smaller street relative to other enclosing streets of the Reserve.

78. All of the access points that he refers to provide direct access into the off-leash dog area of the Reserve.

79. On 8 July 2024, Mr Murray undertook an inspection of the Reserve and took photographs in order to assess accessibility against the Applicant’s allegations set out in her complaint to Anti-Discrimination NSW. The photographs he produced with notations dealt with the following aspects of accessibility to the Reserve:

1. parking, including:

1. adequate, wide parking and availability of a pedestrian refuge;

2. extensive locations of parking and types of parking, including dedicated accessibility parking space, off-street, kerb side and on-street parking, and where parking is located relative to access points;

3. high availability of parking in terms of parked traffic;

2. the location of the accessible gates in respect to all access points into the Reserve; and

3. the kerb ramps available on the enclosing roads.

80. In respect of Isabella Street, the photographs demonstrate that there are 3 kerb ramps, there is an access pathway along the gutter line that provides access to the ramps from the parking areas and the no standing zone associated with the roundabout aids accessible park access.

81. Further, the parking allocations on Isabella Street are 3,300 millimetres wide which is 100 millimetres wider than the accessible parking provisions within Australian Standard AS2890.5.2020 Part 5 on street parking.

82. In respect of Gladstone Street, the photographs depict on-street parking, kerb side parking and off-street accessible parking directly across the road from the Reserve with a pedestrian refuge island available for use for those attending the park. Accessible parking is commonly understood to be disability parking.

83. The photographs also depict the Gladstone Street access ramp and access gates. The notation to the photograph states that “accessible disability parking close to the entrance of the Reserve”.

84. The Australian Standard AS2890.5:2020 Edition, Part 5 on-street parking referred to by Mr Murray are attached to his affidavit.

85. Part 4.5 deals with parking for people with disabilities. The general requirements (4.5.1) provide that within the overall provisions of on-street parking a number of accessible parking spaces for people with disabilities “should be allocated”. The recommended number of accessible spaces should have regard for the types of land uses, traffic volumes, stated speed limits, roadway widths and topography of the locality. Table 4.2 sets out recommended proportions relative to adjacent land uses and development.

86. The general requirements proceed to state that accessible on-street parking is not recommended for roadways with speed limits exceeding 50 kilometres per hour or two-way traffic volumes exceeding 200 vehicles per hour. It is not recommended for 30 degree angle parking.

87. Accessible on-street parking, it is stipulated, should be located in:

1. close proximity to any particular establishments which people with disabilities are likely to use; and

2. areas where safe and accessible paths of travel from the accessible parking spaces to the adjoining developments is attached.

88. The design of accessible on-street parking in residential areas should be provided in accordance with Table 4.2 to Figure 4.7. Table 4.2, the recommended minimum number of accessible spaces by land use stipulates the number of accessible spaces as 1% - 2% for outdoor sporting facilities and outdoor recreation areas.

89. Figure 4.2 sets out examples of accessible parallel parking kerb extensions. The minimum width of the parking area should be 3.2 metres and length 7.8 metres.

90. Part 4.5.2 of the Standard sets out design requirements. It provides that parking spaces for use by people with disabilities “shall conform” with the following:

(a)   Pavement requirements – A parking space shall consist of an unobstructed area having a firm plane surface, all at the one level, with a fall not exceeding 1:40 in either the direction of parking or at 90° to it, or 1:33 if the surface has a bituminous seal.

(b)   Provision of kerb ramps – Accessible parking spaces and shared areas shall incorporate kerb ramps to access pedestrian footpaths in according with AS 1428.1. See Figure 4.2 to Figure 4.7 for examples.

(c)   Provision of accessible path of travel – A continuous, accessible path of travel in accordance with AS 1428.1 shall be provided between each parking space and the adjacent footpath.

(d)   Signs – Parking spaces shall be identified by a parking control sign incorporating the international symbol of access for people with disabilities (refer to AS 1742.11).

(e)   Pavement markings – Parking spaces shall be marked in accordance with AS/NZS 2890.6 except where a shared area is on a footpath.

(f)   Headroom – The headroom for each accessible parking space shall be at least 2.5m.

91. In respect of the parking available on Isabella Street, Mr Murray stated, by way of opinion, that there is ample kerb side parking and on-street parking available, the parking allocations are 3,300 millimetre in width, exceeding the minimum of 3,200 millimetres as specified in the Standard, a 1,500 millimetre clearance space provides ample room between oncoming traffic and people parking their vehicles, allowing them to safely enter and exit their vehicles, the parking spaces are immediately adjacent to the access point gates and he saw the Applicant’s vehicle on 19 December 2024 parked adjacent to the entrance on Isabella Street.

92. In relation to the parking available on Gladstone Street, Mr Murray’s opinion is that the length of the street provides extensive kerb side and off-street parking which is directly adjacent to the Reserve, the length of Gladstone Street is approximately 100 metres of parking along the side of Gladstone Street that is adjacent to the Reserve, and approximately 110 metres of parking along the opposite side of Gladstone Street. There is a dedicated accessible parking space as part of the off-street parking on Gladstone Street which is situated directly across the road and within “close proximity” (approximately 30 metres) (in respect of which there is a dispute) to the Gladstone Street entrance of the Reserve, the accessible parking space is accompanied by a pedestrian refuge island assisting access for individuals attending the Reserve or the neighbouring park to cross the road and, he opines, that there are ample parking spaces which are immediately adjacent to the access point/gate on that street into the off-leash dog area of the Reserve.

93. Mr Murray also stated that there is access in Brabyn Street and also on Corry Crescent and Waugh Avenue, a no-through road with on-street parking options.

94. In respect of access points at Isabella, Gladstone and Brabyn Streets, there are installed the following gates:

1. 4 gates on Isabella Street, inclusive of 1 recently upgraded gate;

2. 4 gates on Gladstone Street, inclusive of 2 recently upgraded sets of double gates; and

3. 2 gates on Brabyn Street.

95. In respect of kerb ramps and pathways leading to access points to the Reserve, Mr Murray expressed the view that kerb ramps have been designed and positioned to maximise safety and accessibility for people with mobility impairments. He rejects the Applicant’s allegations concerning the inadequacy of the kerb ramps and states that they are positioned close to the footpath and provide a seamless and relatively safe continuation of the footpath. The placement of the kerb ramps is particularly important for park users and people with visual impairments, as they offer a predictable and uninterrupted path of travel. Additional kerb ramps are provided at the roundabout located at the intersection of Isabella Street and Macarthur Street, which have a pedestrian refuge and kerb blisters, both of which improve safety and accessibility for users.

96. In relation to the amenities on the Reserve, Mr Murray stated that the amenities (toilet) block is currently closed on the basis that it is not operational nor viable for public use (although he does not express any basis for that statement). It is the Council’s intent that, subject to funding from the “Park’s team” at Council, the toilet amenities block at the Reserve will be upgraded.

97. Reference was then made by Mr Murray to the Council’s “Heart of Play Masterplan” (“the Masterplan”) to improve and increase amenities in open spaces to support community use, including accessible public toilets. Under the Masterplan the Council is scoping works to improve and upgrade the existing amenities. However, the Council does not have the funding at this stage to go ahead with those works. It was stated, without specification, that works currently being scoped are a costly undertaking and are currently underfunded. This plan was in essence a “wish list” and it was not clear what, if any, plans would eventually be implemented.

98. There are two other toilet amenities (male and female) located at the neighbouring park to the Reserve, being Old Sailyards Reserve approximately 50 metres from the accessible space at the Reserve open on sport days and Doyle Ground which are located 190 metres away from the closest gate at the Reserve on Isabella Street.

99. In general response to the Applicant’s Points of Claim, Mr Murray said that modifications can be made by Council to increase accessibility if required for particular users, which in his experience, Council has been willing to explore and has explored to date, any substantive changes by Council to public roads and parking spaces, such as the reduction of park areas for additional parking, are subject to rigorous public consultation processes and the costs, along with the associated time required to address public concerns and potentially revise proposals, must be accounted for in any planning and development processes.

100. In relation to the Applicant’s suggestion that further accessible parking should be installed at or near the Reserve, Mr Murray says that this “would impose a significant burden on Council, involving significant construction works including community consultation which may be opposed on the basis of reduction of park land for a car park or parking spaces and the development of public land (such as the pedestrian areas or the park itself, for construction of off-street or on-street accessible car spaces)”. In addition, the establishment of a further off-street accessible parking space is not, in his opinion, necessary as there is, in addition to the off-street accessible parking space offered, sufficient on-street parking within the vicinity of the Reserve and it is open to the Applicant to attend any of the 9 other off-leash dog parks within the Local Government Area.

101. In answer to questions from the Tribunal, Mr Murray explained that an accessible space could not currently be provided in close proximity to the access gates on Isabella Street because it would not be compliant with AS 2890.5 because the gradient will be greater than 30 degrees. That gradient was too steep. As he pointed out in his evidence in chief, the width of the road adjacent to the Reserve was wide enough to accommodate an accessible space in accordance with the standard.

102. However, an accessible space could readily be provided 150 metres away from the current accessible gate, he said.

103. The area identified by Mr Murray for an accessible and compliant parking spot where the road width and gradient was acceptable was further away, the other side of the intersection with Macarthur Street.

104. An accessible parking space was not desirable in Waugh Street. A better spot was available in Isabella Street which was wide enough, and the gradient at the area he nominated was level. It would be possible to put an access gate into the Reserve adjacent to that parking spot and “it will happen if I tell them to do it”. In order to implement this parking “Traffic”, “Parks” and “Signage” sections within Council would be involved.

105. Mr Murray did not suggest that there would be significant cost involved in providing an accessible space as described by him in questioning.

Relevant Legislative Provisions

106. Indirect discrimination is dealt with in Part 4A of the ADA.

107. Section 49A of the ADA reads as follows:

49A   Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability –

(a)   that a person has, or

(b)   that a person is thought to have (whether or not the person in fact has the disability), or

(c)   that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

108. Section 49B(1) reads as follows:

49B   What constitutes discrimination on the ground of disability

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator -

(a)   on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

109. Section 49M reads as follows:

49M   Provision of goods and services

(1)   It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -

(a)   by refusing to provide the person with those goods or services, or

(b)   in the terms on which he or she provides the person with those goods or services.

(2)   Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

110. What constitutes unjustifiable hardship is defined in s 49C. For the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:

(a)   the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

(b)   the effect of the disability of a person concerned, and

(c)   the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

111. The Applicant carries the onus of proving that the conduct of the Council complained of is unlawful under the Act (see, for example, Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]).

112. In order to establish that indirect disability discrimination occurred, the Applicant needs to establish the following:

1. that she suffers a disability;

2. that she was required to comply with a requirement or condition by the Respondent;

3. a substantially higher proportion of people without her disability comply, or are able to comply, with that requirement or condition;

4. the requirement or condition is not reasonable in the circumstances of the case; and

5. the Applicant is not able to comply with that requirement or condition.

113. The ADA is concerned with addressing disadvantage, or less favourable treatment, brought about or caused by the person’s disability. For indirect disability discrimination it is sufficient that the disability explains the disadvantage, that is, that the disability explains the effect or impact of the discriminator’s conduct. In each case there is a causal link with the person’s disability (see Sklavos v Australian College of Dermatologists (2017) FCAFC 128; 256 FCR 247 at [23] (per Bromburg J with whom Griffith and Brommich JJ agreed)).

114. The identification of the “requirement or condition” is a question of fact, as is the question of whether a “requirement or condition” has been imposed. The question as to whether any “requirement or condition” is “reasonable” is also a question of fact. The onus of proving that a “requirement or condition” is “unreasonable” lies upon those making the claim of discrimination: Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1 (“Nojin”) at [180] per Flick J. In Nojin in respect of analogous Federal legislation, the Disability Discrimination Act 1992 (Cth), Flick J held at [202]:

In addition to the principles summarised by Sackville and Stone JJ in Catholic Education Office, it should be recalled that when considering whether a “requirement or condition” is “reasonable in the circumstances”:

the term “reasonable” is a term which should be construed in a manner which promotes the object and purposes of the Disability Discrimination Act;

in determining whether a “requirement or condition” is “reasonable”, it is for the Court itself to determine “reasonableness” – the views of experts and those who participated in the development of assessment tools (including BSWAT) may inform the conclusion, but those views are no substitute for the Court itself making up its own mind (cf. Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 at 487-489 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ); and

little guidance is provided as to how the “reasonableness” of a “requirement or condition” is to be assessed – other than the licence given by the legislature to have “regard to the circumstances of the case”. The reference to “the circumstances of the case” necessarily directs attention to the manner in which a “requirement or condition” operates in “the circumstances” of an individual case rather than a more abstract consideration of the reasonableness of the “requirement or condition” divorced from the particular context in which it is being applied. Whether this is a different approach to that adopted by Kyrou J in Turner was not addressed in the submissions of either the Appellants or the Respondent.

Presumably the construction of the term “reasonable” must recognise that:

the manner in which the “requirement or condition” itself operates may include some matters which are favourable or unfavourable to a particular claimant and favourable or unfavourable to others subjected to the “requirement or condition”; and

the “circumstances of the case” may give rise to matters which indicate that not only one conclusion is available – different people may well reach different conclusions.

The term “reasonable” accommodates the prospect that there may well be competing factors – each pulling an ultimate conclusion on the issue in different directions.

115. Katzmann J in Nojin summarised the position thus:

233.   Indirect discrimination (as defined in s 6 and the comparable provisions in other anti-discrimination legislation) is concerned with conduct that is fair in form (facially neutral) but unfair in practice. Its focus is on the impact or outcome of the conduct. The terms “requirement” and “condition” take their colour from their statutory context. See Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 (“Styles”) at 257-8 per Bowen CJ and Gummow J. No narrow or technical construction is to be given to them (State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at 195 per Gummow, Hayne and Crennan JJ). Rather, they are to be interpreted broadly or liberally so as to further the objects of the Act (Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185 per Dawson J and at 195-7 per McHugh J; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393-4 per Dawson and Toohey JJ and 406-7 per McHugh J). The objects of the Act, which are set out in s 3, include the elimination as far as possible of discrimination against persons on the ground of disability in the area of work.

234.   Albeit that the requirement or condition must be identified with some precision, any form of qualification or prerequisite demanded of an employee by an employer will suffice, even where, as here, the requirement or condition is not made explicit: Banovic at 185 per Dawson J; Waters at 360 per Mason CJ and Gaudron J, at 407 per McHugh J. …

116. The authorities indicate that the requirement or condition must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185; Waters v Public Transport Corporation (1991) CLR 349 at 393, 406-7).

117. In Watersv Public Transport Corporation [1991] HCA 49; (1991) CLR 349 the claimants’ claim was that the Public Transport Corporation had discriminated against them by removing conductors from some trams and introducing a system of “scratch tickets”. The disabilities of the claimants made it impossible or at least exceedingly difficult to use the scratch tickets. Indirect discrimination was claimed pursuant to s 17 of the Equal Opportunity Act 1984 (VIC). The claims for discrimination were upheld.

118. After referring to the earlier observations in Australian Iron and Steel, Dawson and Toohey JJ went on to conclude (at 393-394):

We do not think that there can be any doubt that the introduction of the scratch ticket imposed a requirement or condition that it be used in order to travel on trams and indeed the contrary was not contended by the respondent before this Court. Nor do we think that it unduly strains the language of s. 17(5) to say that the withdrawal of conductors from trams imposed a requirement or condition that passengers travel on trams without the assistance of a conductor. The Board so found and we think it was open to it to make those findings.

The respondent, however, contended that the service provided by it was driver-only trams and that there was, therefore, no relevant requirement or condition imposed with respect to the use of that service. It is true that for something to be a requirement or condition in relation to a matter it must be separate from that matter. However, whether such a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the matter is described and how the requirement or condition is characterised. Given that the legislation should receive a generous construction, we do not think that the respondent can evade the implications of s. 17(5) by defining the service which it provides so as to incorporate as part of that service what would otherwise be a requirement or condition of the provision of that service. At all events the respondent ought not be allowed to do so where the service previously provided by it was continued, but with alterations which might be characterised as the imposition of different requirements. In any event the description of the service provided by the respondent and the characterisation of the requirements or conditions on which the service is provided by the respondent are questions of fact to be determined by the Board and it was clearly open to the Board to define the service provided by the respondent as public transport and to characterise the removal of conductors from some trams as imposing on users of those trams a requirement or condition that they use them without the assistance of conductors.

119. In State of Victoria v Turner [2009] VSC 66 at [100]; 23 VR 110 at [100] Kyrou J summarised the principles to be applied when considering similar provisions in the Equal Opportunity Act 1995 (VIC) on the question of what constitutes not reasonable in the “circumstances of the case”, his Honour there said the Tribunal must consider all the circumstances of the case in determining the reasonableness of the condition. Those circumstances include:

(i) all the circumstances set out in s 9(2) of the EO Act, which are not exhaustive;

(ii)   the position of the respondent as well as the complainant;

(iii)   the financial or economic circumstances of the respondent, including the cost of imposing the condition and the cost of not imposing it;

(iv)   the availability of an alternative condition which is equally efficacious, and its cost;

(v)   the presence of a logical and understandable basis for the condition; and

(vi)   where the respondent is a government or statutory body, policy objectives.

120. Section 49M(1)(b) is concerned with the actual terms and conditions on which the service provider provides the person with the services.

121. Section 49B states the test for determining whether an alleged discrimination has discriminated against another person on the ground of the latter’s disability. As explained in Catholic Education Office v Clarke [2004] FCAFC 197 (“Catholic Education Office”) at [99] the question posed by the equivalent provisions to s 49M and s 49B is whether the terms or conditions on which the discriminator is prepared to provide the services constitute a requirement or condition satisfying the requirements of s 49B. If so satisfied, discrimination on the ground of the person’s disability “in the terms and conditions” on which it provides the service will be established.

122. The service provided should not be defined narrowly so as to incorporate as part of the service what would otherwise be a requirement or condition: Catholic Education Office at [108].

123. In Department of Foreign Affairs v Styles (1989) 23 FCR 251 at 263 the Court held in the context of the Sex Discrimination Act 1984 (Cth) that the term “reasonableness” should entail an evaluation of the availability of alternative methods and the need for the observance of health and safety. The test is less demanding than one of necessity, but more demanding than a test of convenience (Bowen CJ and Gummow J).

First Issue – A Disability

124. The Applicant satisfies this requirement as she has established that she suffers a disability within the terms of s 4 of the ADA.

Second Issue - Required to Comply with the Requirement or Condition

The Requirement or Condition

125. In Waters the High Court considered the identification of the requirement or condition formulated by the Board. The Board had formed the view that the removal of the conductors from certain tram services in Melbourne involved the imposition of a requirement or condition that the complainants’ use trams without the assistance of a conductor. Mason CJ and Gaudron J held that it is sufficient if the requirement or condition is implicit in the conduct which is said to constitute discrimination. In addition, the goods or services are not required to be identified in any particular way. The relevant service was that of public transport as effected by the changes directed by the relevant Minister for Transport.

126. Their Honours held that the removal of conductors involved imposition of a condition that the complainants could fully avail themselves with the tram services only if they could use transport without the assistance of a conductor.

127. Dawson and Toohey JJ (at [18]) held that the Board identified the requirement that the appellants as a requirement or condition of using the public transport system, to validate scratch tickets and to use the tram system without the system of conductors. In doing so it held these requirements or conditions with which persons not suffering the impairments suffered by the appellants can comply and with which the appellants could not comply. Further, that it was not a reasonable requirement. Since the respondent provided the services and the terms upon which it performed those services were the requirement/condition which the Board found were discriminatory, the Board had found that the imposition of those terms unlawful.

128. The requirement or condition which, doing our best on the evidence we understand the Applicant is relying upon, stems from her inability to safely park, without risk of falling, or falling with the risk of injury from oncoming traffic when parked in the existing parking available to her, to access the Reserve.

129. The relevant requirement or condition which in those circumstances is imposed by the Council, implicit in its conduct, is that as a condition or requirement of accessing and using the Reserve persons with a disability travelling there by motor vehicle are required to park their vehicles on on-street parking on Isabella Street and Brabyn Street, which does not have accessible disability parking, or on-street parking on Gladstone Street, which has no accessible disability parking, or on an accessible disability parking space off Gladstone Street, which is not in close proximity to access gates onto the Reserve.

130. Formulation of the requirement or condition in this way is in our view consistent with the principles we outline above and further the objects of the ADA and address disadvantage.

Required to Comply

131. The Applicant can only avail herself of the use of the amenity that the Reserve offers by parking her vehicle in the available parking identified above.

132. We accept that by reason of her disability the Applicant is unable to walk to the Reserve from her home. She can only practically access the Reserve by driving, or by being driven, to the Reserve and then parking the vehicle as close to the access gates as she can. The available parking is, however, only as we identify at [129] above. In that sense the Applicant is thus required to comply with the requirement or condition to access the Reserve.

Third Issue – Higher Proportion Without Disability Comply or Are Able To

133. We are satisfied that a higher proportion of persons without the Applicant’s disability are able to comply with the requirement or condition we set out above. They do not suffer the same issues as the risk of falling, or crossing the roads, as the Applicant does. They do not have the same issues in accessing the Reserve after parking not in close proximity to designated entry gates onto the Reserve. They do not require or rely on accessible disability parking to access the Reserve and are able to enjoy the amenity by complying with the requirement or condition. Mr Murray identified people without disabilities entering the Reserve from some distance.

Fourth Issue – Requirement or Condition is Not Reasonable

134. Mr Murray’s evidence in chief deals with the availability of general parking. His evidence does not directly confront the unavailability of accessible parking in Isabella and Brabyn Streets or that of the unavailability of accessible parking in close proximity to access gates on Gladstone Street.

135. On the evidence before us we find that:

1. Currently there is no accessible disability parking available for people with disabilities on Isabella Street.

2. The on-street parking available on Brabyn Street does not include any accessible disability parking.

3. Kerb side parking adjacent to the Reserve in Isabella Street in close proximity to access gates is at a gradient greater than 1:30. We infer from that that it is not safe for the Council to provide accessible parking close to the existing access gates.

4. Accessible parking that is compliant with AS 2890.5:2020 can be provided adjacent to the Reserve in Isabella Street approximately 150 metres from the current access close to the intersection with Waugh Avenue which is more than 3,200 millimetres wide and where the road is relatively level.

5. The provision of accessible parking at that location on Isabella Street does not require any major construction work and requires in practical terms the application of signage. The provision of accessible parking in that location will not involve reduction of park land for a car park, nor development of public land.

6. The photographic evidence before us indicates that the speed limit on Isabella Street is 50 kilometres per hour and the volume of traffic is relatively low. Accessible parking can therefore be provided as set out in the Australian Standard we set out above.

7. As Mr Murray testified, access to the whole of the off-leash area of the Reserve can readily be provided in close proximity to that accessible parking.

8. The distance from the accessible parking in Gladstone Street to new access gates into the Reserve is approximately 90 metres to the first gate and approximately 130 metres to the second gate and also requires crossing of the road.

9. That accessible parking is not in close proximity to access which it should be in order to conform with AS 2890.5.

10. Mr Murray has expertise in matters related to accessibility onto public spaces and is well equipped to express expert opinions on accessible parking, and in particular in relation to parking so as to provide access to public spaces such as the Reserve.

11. Providing accessible parking was previously identified by Mr Murray as an issue and he recommended a solution which was rejected by the Council. There is no evidence to satisfy us as to why his recommendation was rejected.

12. The requirement or condition which we identify above operates in the circumstances of the Applicant in a manner which places her at risk. Walking on one leg with the aid of crutches increases the risk to the Applicant of losing her balance on hard or rough surfaces, or sloping surfaces. If the Applicant were to fall over exiting a parked vehicle on the driver’s side of the vehicle on the parking available she could fall into the path of oncoming traffic. Crossing a road carrying traffic on crutches also poses a degree of risk to the Applicant.

13. It is unlikely that the cost of converting the kerb side parking close to the corner of Waugh and Isabella Street, as identified by Mr Murray, and with minimal work required will be costly to the Council.

14. The Council has not identified the availability of an alternative to the requirement or condition which is equally efficacious.

15. There is, in our view, no logical and understandable basis for the imposition of the requirement or condition in circumstances where there is an identified parking space available which can be designated accessible parking and will address the risk to the Applicant, at least in part.

16. Providing gate access to the Reserve adjacent to the location of an accessible parking space as identified by Mr Murray is also readily achievable and is unlikely to be costly.

17. There is no available off-street kerb side parking in Gladstone Street which can readily be converted into accessible disability parking in close proximity to the entrances into the Reserve from that Street.

18. Access to the Reserve from Gladstone Street also poses mobility difficulties for the Applicant after heavy rain as the area is most affected by heavy rain and a person on crutches can find walking very difficult.

19. There is no policy objective identified by the Council which dictates the imposition of the requirement or condition.

20. The Master Plan provides no certainty or detail as to what the Council may or may not do in the future to provide more favourable access to the Reserve for persons with disabilities.

136. In respect of reasonableness the Council argues that:

1. there is sufficient off-street and on-street parking on the three main surrounding streets of the Reserve;

2. the road widths on Isabella Street exceed the Australian Standard;

3. there are several and sufficient kerb ramps;

4. there is a pedestrian refuge in the centre of Gladstone Street for crossing the road from the accessible disabled parking space;

5. this accessible disabled parking space is within close proximity to the Reserve;

6. foot paths and gates into the Reserve are accessible and usable;

7. the Council has responded to the Applicant’s concerns and made adjustments including in respect of entry gates and relocating temporary fencing and fence repairs;

8. there are 9 other off-leash parks;

9. it is the Council’s intention, subject to finance, to upgrade the toilets to reopen them to the public on the Reserve.

137. We do not consider that these matters counter a conclusion that the requirement or condition is not reasonable:

1. The factors raised do not address the unavailability of a designated accessible disability parking space in Isabella Street.

2. The Council’s evidence is that there is the available kerb side parking on Isabella Street near the corner of Waugh Street which is suitable for accessible disability parking and which will be in conformity with the Australian Standard.

3. The Council points only to the width of the kerb side parking on Isabella Street and does not address the gradient where there is currently gate access into the Reserve on Isabella Street, or that the gradient does not comply with disability parking specified in the Standard.

4. We do not accept that the accessible disability parking on Gladstone Street, which, as we have identified above, is some distance from the entrances is in “close proximity” to the entrances, particularly for an amputee.

5. Persons with disabilities should have the choice, as do persons without disabilities, of visiting and using the park or reserve most convenient to them.

6. The adjustments made by the Council (which are commendable) do not satisfactorily address safety and risk to the Applicant by reason of the absence of accessible disability parking in close proximity to entrance points into the Reserve.

138. The requirement or condition we have identified above operates in a manner which adversely affects the Applicant’s individual circumstances.

139. In our view, and we find, the requirement or condition we identify above is in the circumstances not reasonable.

140. In coming to the view that the requirement or condition is not reasonable we have borne in mind that the Council has multiple calls on its resources. However, the likely cost of addressing the Applicant’s complaint, not imposing the requirement as described by Mr Murray, is low and is unlikely to impose a significant cost burden on the Council. On the other hand, the Applicant is effectively deprived of the amenity unless exposed to a level of risk.

Fifth Issue - Does Not or Is Not Able to Comply

141. The Appellant’s case is not that she cannot access the Reserve from either Isabella Street or Gladstone Street. Her evidence based on her experience is that standard size parking spaces on busy roads can be hazardous for some people with disabilities. She ceased driving to the Reserve after nearly being hit by a car on Isabella Street while she was exiting her car and asserted that the only safe access suitable for her given her disability is wide accessible disability parking close to the entrance to the Reserve. We accept that evidence.

141. The accessible disability parking on Gladstone Street requires crossing the road and is not in close proximity to the access gates.

142. The Applicant is able to access the Reserve and is thus, on one view, able to comply with the condition or requirement. However, in doing so she compromises her safety. The issue is whether that satisfies this element of discrimination.

143. In Waters, Mason CJ and Gaudron J (at 361) noted that the removal of conductors from some trams involved the imposition of a condition that the complainants could “fully avail” themselves of the tram service only if they could use trams without the assistance of conductors.

144. Further, a broad and flexible approach is required to the issue of ability to comply. This is illustrated by the decision in Mandla v Dowell Lee [1993] 2 AC 548 which has been referred to as guidance in Australia and elsewhere.

145. In Hurst v State of Queensland [2006] FCAFC 100 the Court was taken to cases which demonstrated that the fact that a person can literally “comply” with a requirement or condition does not prevent that person from being relevantly unable to comply with that requirement or condition for the purposes of anti-discrimination legislation.

146. The Court set out in some detail the submissions made by Counsel for the Human Rights and Equal Opportunity Commission intervening in the appeal as follows:

58.   Mr Lenehan referred to Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 (“Mandla”). The appellant in that case was a Sikh student who wore long hair and a turban. He was subjected to a requirement that as a condition of entry to his school he should wear short hair and a cap.

59.   Lord Fraser, when dealing with s 1(1)(b)(i) of the Race Relations Act 1976 (UK), a provision similar in scope to s 6(c), said of the expression “can comply” (at 565-6):

“It is obvious Sikhs, like anyone else, “can” refrain from wearing a turban, if “can” is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word “can” would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford to them. They “can” comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules ... The word “can” is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976, it must, in my opinion, have been intended by Parliament to be read not as meaning “can physically,” so as to indicate a theoretical possibility, but as meaning “can in practice” or “can consistently with the customs and cultural conditions of the racial group.” ... I am of opinion that the “No turban” rule was not one with which the second appellant could, in the relevant sense, comply.”

60.   Mr Lenehan submitted that Mandla had been cited with approval on a number of occasions in this country by courts that had considered indirect discrimination. See for example: Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561 per Drummond J (“Sluggett”); Travers v New South Wales [2000] FCA 1565 per Lehane J (“Travers”); Styles v Secretary of the Department of Foreign Affairs [1988] FCA 364; (1988) 84 ALR 408 per Wilcox J; and Banovic at 197 per McHugh J. It had also been cited with approval by the Western Australian Equal Opportunity Tribunal in Bogle v Metropolitan Health Service Board (2000) EOC |P93-069 (“Bogle”). He submitted that these cases supported the proposition that s 6(c) should be given a “broad” (see Sluggett (at [51])) or “reasonably liberal” (see Travers (at [17])) construction. As in Mandla, the fact that a person can literally “comply” with a requirement or condition does not prevent the person from being relevantly unable to comply with that requirement or condition. Rather, Mr Lenehan submitted, a wider enquiry was required taking into account matters such as the practicality of compliance (see: Sluggett at [51]) and the reasonableness of being required to comply (see Bogle (at 74,224) and Access for All Alliance (Harvey Bay) v Harvey Bay City Council [2004] FMCA 915 per Baumann FM (at [9] and [12])).

61.   Mr Lenehan then cited several additional cases in support of his contention that s 6(c) should be construed in a broad and flexible manner.

62.   In Byham v Preston City Council (1991) EOC |P92-377 (“Byham”), a complaint was lodged with the Victorian Equal Opportunity Commission by an elderly man who used crutches. Various meetings that he wished to attend required him to ascend stairs. The “requirement” was characterised as his use of the staircase. He could comply with that requirement, but only with his son’s assistance. It was held that he was “unable to comply with the requirement set by the respondent in a similar manner to the way in which a person not so impaired could comply”.

63.   In Woods v Wollongong City Council (1993) EOC |P92-486 (“Woods”), the requirement or condition was that a woman in a wheel-chair use stairs or an escalator. The Equal Opportunity Tribunal observed that, if a literal construction were adopted, it could be said that the applicant would be able to comply with that condition with “able bodied assistance”. It considered, however (at 79,506):

“... that compliance with this requirement should be interpreted in a practical sense so that, unless the complainant could comply with the requirement without assistance, she must be regarded [for the purposes of the relevant provision] as being unable to comply.”

64.   In Travers, a 12 year old girl suffered spina bifida and resultant bowel and bladder incontinence. She was denied access to a toilet accessible to her within the few seconds that she required to walk there before she wet herself. Lehane J held that, while it was not literally impossible for her to comply with the condition (that she use a toilet not within her immediate proximity), that consequence would have been seriously embarrassing and distressing. She was therefore not “able to comply” with the requirement or condition in the sense required by the statute.

65.   As previously indicated, in Clarke at first instance, Madgwick J found that the applicant, a student called Jacob, had suffered indirect discrimination. The significance of his Honour’s reasoning lay in the fact that he found that Jacob could have been taught without Auslan assistance. However, without such assistance, he would be unable to “meaningfully “participate” in classroom instruction” in ways that his Honour described. Madgwick J had no hesitation in characterising this as “serious disadvantage”.

148. The Court accepted a wide interpretation and rejected the proposition that if a person was able to “cope” they were able to comply.

149. Although the Applicant can literally access the Reserve under the present arrangements she cannot do so safely or without risk. The Applicant has had to curtail her access to the Reserve because of a risk of falling or injury. She cannot currently fully avail herself of the amenity.

150. Accordingly, guided by the decisions referred to above giving the phrase a broad or reasonably liberal construction, we find that the Applicant is not able to comply with the requirement or condition identified above.

Section 49B(1)(b) Conclusion

151. We therefore find that the Applicant has established each of the five required elements giving rise to indirect discrimination against her by the Council.

Other Issues Raised by the Applicant

152. The Applicant raised a number of other complaints to Anti-Discrimination NSW and as set out in her Points of Claim summarised above.

153. The Applicant has not satisfied us that the matters, other than parking, such as opening the gates, the impact of heavy rain, lack of paths leading into the Reserve have been made out.

154. In respect of the Applicant’s complaint of the lack of toilet facilities at the Reserve we note that she and Mr Deryk did give evidence of the need they experienced from time of toilet facilities.

155. There is no evidence that the Applicant suffers from a disability other than that specifically set out in her claims. The Applicant has also not established to the requisite standard that the unavailability of toilet facilities on the Reserve affect her in manner materially differently from others, except that she may have further to go to another park.

156. Further, there was some evidence that the Applicant could by application obtain a key to the locked facility on the Reserve but whether that will assist the Applicant was far from clear.

Section 49M

157. Having found that the Council discriminated against the Applicant it is necessary to consider whether the Council’s conduct is unlawful.

158. The Council clearly provide services to persons in its Local Government Area in the form of the dog off-leash facility, namely, the Reserve open to all.

159. “Services” is defined in s 4 of the ADA to include services provided by a council or public authority (e) or services consisting of access to, and the use of any facility in, any place that the public or a section of the public is entitled or allowed to enter or use, for payment or not (f).

160. The services which the Council provides are access to, and use of, the public park, the Reserve, by any members of the public wishing to take their dogs off leash.

161. The terms upon which it provides those services are the requirement or condition we have identified above.

162. Put in the manner identified in Catholic Education Office, which we refer to above, the terms or conditions on which the Council is prepared to provide the service constitute a requirement or condition satisfying the requirements of s 49B.

163. Accordingly, subject to the question of unjustifiable hardship, we find that the Council in providing the services has discriminated against the Applicant in the terms in which it provides the services to the Applicant contrary to s 49M(1)(b) of the ADA.

164. The Applicant also complains about the absence of toilet facilities for use by the public on the Reserve. The Council does not provide such facilities on the Reserve. The complaint in respect of the absence of such facilities is thus not established.

Unjustifiable Hardship

165. The question then is whether the Council has established unjustifiable hardship pursuant to s 49M(1)(c) and s 49C of the ADA.

166. In summary, the Council argued that:

1. it is a public authority required to consult with and consider the views of all potential users of public spaces it manages;

2. it would impose “a significant financial and resource burden on it” including:

1. community consultation (which may result in overall opposition to installing more off-street accessible disabled parking on the basis of reduction of parkland for a parking space(s));

2. development of public land (such as the pedestrian areas or the Reserve itself) for construction of an off-street or on-street accessible disabled parking space;

3. the installation of a further accessible parking space is a costly exercise and there are issues with underfunding and budget allocations;

4. installing a further off-street accessible parking space is not required given there is sufficient on-street parking alongside and within the vicinity of the Reserve that the Applicant and other users of the Reserve can use; and

5. the Applicant’s complaints about road width of streets around the Reserve are not established and this is not a basis for disability discrimination. Council maintains that there is ample room to enter and exit a vehicle on these streets, as on most public streets and roads.

167. We do not accept that these matters give rise to unjustifiable hardship:

1. The provision of an accessible parking space on Isabella Street does not intrude into public spaces.

2. The provision of an accessible disability parking space as identified by Mr Murray, and which we deal with above can hardly impose a significant financial and resource burden on the Council. Mr Murray raised no concerns about the cost of providing that accessible parking.

3. The Council has not sought to quantify or establish a basis either of those burdens.

4. The provision of the accessible disability parking space does not involve a reduction of parkland for a parking space or construction work.

5. The Council did not provide evidence of what is asserted as a “costly exercise” or what the “underfunding issues” are. We are unable to attach any weight to a bland and unsupported assertion to this effect. There is no estimate of expenditure required provided to us.

6. The claim that there is sufficient on-street parking overlooks the absence of any accessible disability parking on Isabella Street or in close proximity to access on Gladstone Street.

7. The detriment likely to accrue to the Council of providing the accessible disability parking in Isabella Street identified by Mr Murray is unlikely to be significant. The space was there and literally required little work to convert it to accessible parking.

8. At the same time the effect of the Applicant’s disability on her mobility and access to the Reserve weighed heavily in favour of the implementation of one accessible parking space.

168. In our view, and we find, the Council has failed to establish unjustifiable hardship.

Solicitors Complaint

169. As we set out above, the Tribunal reserved its decision in this matter on 24 April 2025.

170. On 16 May 2025, the Solicitors for the Council wrote to the Tribunal to “place on record our objection to the orders of NCAT on 24 and 28 April 2025 reserving the matter for judgment”.

171. The letter then asserts that the Tribunal reserved the judgment “mid-hearing” whilst part heard, and without closing submissions.

172. Those assertions are not correct. At the hearing on 18 February 2025, the Council had every opportunity to make closing submissions on the evidence before the Tribunal. Closing submissions were in fact made both in writing and orally.

173. After the Council closed its case and after those submissions were made, at the request of Counsel for the Council the Tribunal reluctantly gave leave to the Council to file further evidence which, if provided, may have involved the need for further submissions.

174. The Council did not comply with the orders to file further evidence by specified dates. The Council, did not meet its obligations under s 36(3) of the CAT Act to comply with the relevant directions and orders of the Tribunal.

175. After 9 weeks from the date of the first order and in the absence of the filing of any further evidence the Tribunal reserved its decision. The Council did not seek a further extension of time after the expiry of the deadline of 11 April 202 for the filing of evidence which had not been met.

176. After the decision was reserved the Council did not seek to reopen the case.

177. The Tribunal rejects the assertion that the Council was denied procedural fairness. It was given the opportunity of being further heard but it failed to avail itself of the opportunity. Procedural fairness relevantly extends to the opportunity of being further heard. If the opportunity is not taken up there is no denial of procedural fairness.

178. The Applicant has not made out her claim in respect of the matters identified at [28] (1), (6), (7), (8), (9) and (10).

Orders

1. The application is granted in part.

2. The Respondent discriminated against the Applicant in the terms it provided services to a reserve in contravention of s 49M(1)(b) of the Anti-Discrimination Act 1977.

3. The matter is to be relisted to deal with relief, if any, to be granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 October 2025