Hardiman v Parramatta City Council

[2024] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hardiman v Parramatta City Council [2024] NSWCATAD 242

Hearing dates:

7 August 2024

Date of orders:

15 August 2024

Decision date:

15 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member

Decision:

Leave to proceed with the Complaint is granted.

Catchwords:

Human Rights – leave – disability discrimination – sufficiency of access to park

Legislation Cited:

Anti-Discrimination Act, 1977 (NSW)

Cases Cited:

Jones & Anor v Ekermawi [2009] NSWCA 388

Ekermawi v ADT & Ors [2009] NSWSC 143

Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Texts Cited:

None Cited

Category:

Procedural rulings

Parties:

Pamela Hardiman (Applicant)
Parramatta City Council (Respondent)

Representation:

Solicitors:
Applicant – (self-represented)
McCabes Lawyers (Respondent)

File Number(s):

2024/00196887

Publication restriction:

Nil

REASONS FOR DECISION

1. This was an application for leave to proceed with a complaint of disability discrimination made under the Anti-Discrimination Act 1977 (NSW) (‘the Act’).

2. A complaint was made by the applicant of disability discrimination in the provision of goods and services in relation to conduct that is said to have occurred about 26 October 2023.

3. The complaint was declined by a delegate of Anti-Discrimination NSW (‘ADNSW’) because “under s92(1)(a(vi) of the Act, namely that:

“(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of”

4. The applicant is a person who, due to an amputation of her left leg from her hip, uses crutches and at times a wheelchair. She alleges that she uses the facilities at the Dan Mahony Reserve, in Parramatta, an off leash area where dogs may be exercised (referred to here as ‘the park’). Due to her disability, she alleges that she is unable to park safely, alight safely from her vehicle and take her dogs on leashes to the park and use the off-leash area.

5. In her initial complaint, the applicant alleged that the conditions are hazardous due to a lack of off-street parking, access to the park being on a busy road, lack of footpaths at the ingress/egress points, the toilets not being opened to the public and the park being in a rundown condition. There were or are water leaks that make the ground muddy and slippery. It is the only off-leash park area in the suburb of Parramatta.

6. The respondent agreed that the park presented maintenance challenges and agreed that the toilets are closed. They upgraded the ingress/egress gate on Isabella Rd after the complaint was made, so that it is now much safer, with a concrete base, feeding off a concrete park. They also improved the fencing and dealt with leakage of water which led to slushy conditions.

7. By the time of the leave application, those works had been completed and the Council contended that there was satisfactory parking available.

8. Anti-Discrimination NSW declined the complaint under s92(1)(a)(vi) of the Anti-Discrimination Act ( ‘Act’) on the basis that they were satisfied that the respondent had taken appropriate steps to remedy the or redress the conduct, or part of the conduct complained of. The delegate noted that Council had provided a detailed response indicating what had been done since the complaint was lodged, that there was no evidence that the service was provided to the applicant on less favourable terms than to anyone else and noted that the applicant had “reframed” her application to complain that those using a wheelchair were discriminated against by the state of the facilities. It was not at that time clear that the applicant at times uses a wheelchair, an assertion she now makes.

9. At the leave hearing the respondent was legally represented. The applicant complained that she was not legally represented but, when asked whether she wanted the matter adjourned so that she could seek legal advice, said that she was ready to proceed with the hearing.

10. Oral submissions were made by both parties, who also relied on their written submissions, including photographs of the park and surrounding areas and, in the case of the applicant, photos of herself getting out of her car, as well as other photographs.

11. At the leave hearing, the applicant submitted that the park is not accessible to people with a physical disability because there is “no safe way to access the park with dogs”, “there is no off-street parking at Dan Mahony’s Reserve and no parking that is designated for people with a disability”. She also notes that the toilets in the off-leash park are permanently closed, whereas those in nearby sporting grounds are available for the use of the public.

12. The respondent denies the complaint of discrimination and contends that the access to the Dan Mahony Reserve is now adequate, that there is nearby off-street parking, sufficient parking adjacent to the newly installed gate, which has a wide area for drivers to alight, with white lines on the ground to delineate the wide area and that the area is not so busy that it causes difficulties in access. The respondent argued that there were sufficient ramps to enable those with mobility disabilities requiring use of a wheelchair to access the park. The respondent agrees that the toilets in the park are permanently closed.

13. The Tribunal considered the oral and written submissions in the matter and the contents of the President’s Report from Anti-Discrimination NSW.

Statutory Framework

14. Section 49B of the Act provides as follows:

(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.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

15. The respondent argued that there was no discrimination, but that if there were, a defence of unjustifiable hardship would be relied upon, i.e. that to improve the access beyond what they have already done would impose an unjustifiable hardship on the respondent, for the purposes of s49C of the Act, which provides as follows:.

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including--

1. the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

2. the effect of the disability of a person concerned, and

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

Consideration

16. The words “on the grounds of” have been paraphrased as “because of”, “due to,” “a real” reason, a “genuine” reason or “true reason” for the treatment alleged to have been discriminatory: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

17. A person may be treated in a discriminatory fashion on the grounds of a disability because the person has or had, is thought to have had or to presently have, or will have in the future, or is thought to have in the future; or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. Where proven, each of those constitute direct disability discrimination.

18. A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability, that will also constitute indirect disability discrimination.

19. The applicant bears the onus of proof that she was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to the disability: Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56] and/or race.

20. The applicant did not present evidence that she has suffered direct discrimination, i.e. less favourable treatment “due to” or “because of” her disability, as the facilities are available to the public and there was no evidence that she had been singled out for less favourable treatment than any other person, rather that the state of the parking and other facilities impacted upon her particularly, so as to discriminate against her on the ground of her disability.

21. The applicant asserted a case of possible indirect discrimination, namely that the Council was, in effect, imposing a mobility test of ability to access the park such that that those with a mobility disability such as hers either could not meet or would have significant difficulty in meeting it (an ‘indirect discrimination’ claim, pursuant to s49B(1)(b)), a difficulty that is greater than others without the mobility disability would face.

22. The applicant relied upon her own experience in making her claims. Her employee, Mr Michael Deryk, who walks her dogs, provided concurring evidence. There was no evidence available from the applicant of anyone else with similar disabilities facing similar difficulties in accessing the park or that a substantial group of those without such disabilities could access the park in ways, or to an extent, that was not open to her, with her mobility disability. Such evidence would be helpful in order to establish a case of indirect discrimination. It was not presented. At the leave hearing, Mr Michael Deryk, who walks the applicant’s dogs, gave oral evidence agreeing that there is insufficient off-street parking, that parking near the gate can be awkward and dangerous for those with mobility disabilities and otherwise agreeing with the applicant.

23. During the leave hearing, considerable time was spent in understanding precisely what access there was to the Reserve, what parking was available, how close it was to ramps and accessible gates. Photographs presented by both parties were of assistance, both for what they showed and what they did not show. For example none of the photographs of either party showed significant built up traffic, yet the applicant and Mr Derryk both argued that the parking areas could become congested at times.

24. There was no allegation or evidence that the respondent had failed to comply with any applicable building or planning standards.

25. The applicant presented photographs of her alighting from the driver’s side of her vehicle and argued that there was insufficient space to do so and that traffic at times “rushed” past, very close to her as she attempted to alight. The respondent argues that there is a wider area than usual that is close to the new gate. The respondent states that “The parking allocations on Isabella Street are 3300 mm wide which is 100 mm wider than the accessible parking provisions within AS 2890.5.20 Part 5 On Street Parking”. From the photographs provided, it appeared that the applicant would be able to exit her vehicle within the white lines on the road, but that it is possible that large vehicles would be very close to where she would alight.

26. The applicant’s photographs do not depict a kerb ramp close to the newly installed gate on Isabella Street, but the respondent contends that there are three kerb ramps ( suitable for wheelchair users) on Isabella Street with an access pathway along the gutter way that provides access to the ramps form the parking areas.

27. The respondent submitted that within the municipality there are 10 off-leash parks and that there is off-street parking at four of them. The applicant states that the other parks, apart from this one, are “too far” from her home to attend.

28. At this particular park, the respondent maintains that there is accessible disability parking close to the entrance to the park in that there is “ample” on-street parking and also off-street and accessible disability parking immediately across the road from the park.

29. Photographs presented by the respondent showed that there is off street parking within quite close proximity to the park (opposite) that includes one disability car parking space. There is a traffic island of a significant size in the middle of the road, on which a pedestrian could stand waiting the cross the rest of the road, referred to by the respondent as a “pedestrian refuge island”.

30. The photographs of the respondent appeared to show that during the day there is ample parking outside the accessible gate on Isabella Road and across the road from the park. The applicant disagreed with this and argued that there were “busy times” at which it was difficult to get parking close to the accessible gates. Mr Deryk agreed with that assessment. Each of them could be expected to provide further evidence of that if the matter is permitted to proceed to hearing.

31. Since the complaint was lodged, the respondent Council has had wire gates and fences mended and a leaking hose fixed. It has also taken steps to improve access to the park with a new ingress - egress gate on Isabella Road that has a concrete base and comes from a concrete path, which would assist those with a mobility disability. There appeared, from the photographs of the respondent, to be some parking near it.

32. The toilets in the park remain closed. The applicant contrasts this situation with the toilets available to those who use the nearby sporting grounds, which have toilets available and open to the public.

33. In deciding whether or not to grant leave the Tribunal may have regard to the grounds which the president may take into account in declining a complaint under s 92 of the Act, and as stated in Jones v Ekermawi[2009] NSWCA 388 at para 60.

34. The complaint was declined by a delegate of Anti-Discrimination NSW (‘ADNSW’) because, pursuant to s92(1)(a(vi) of the Act:

“(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of”

35. The steps taken partially address the areas of complaint by the applicant. They do not address the permanent closure of the toilets in the park (which may well impact upon those with mobility disabilities to a greater extent than the general public). There remains factual disagreement between the parties as to the adequacy of the parking that is safely available to those with mobility disabilities who seek to access the park.

36. Section 96(1) of the Anti-Discrimination Act 1977 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors [2009] NSWSC 143 at para 25. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones & Anor v Ekermawi[2009] NSWCA 388 at 57 and Ekermawi v ADT & Ors [2009] NSWSC 143 at [32].

37. The question of leave involves evaluating whether it is fair and just to grant or refuse leave in the particular circumstances of the case. Again, again those two cases Jones & Anor v Ekermawi[2009] NSWCA 388 at 58; Ekermawi v ADT & Ors[2009] NSWSC 143 are cited in support of that proposition.

38. In this case, taking the evidence at its highest, which the Tribunal is required to do, the closure of the toilets is a matter of fact that is agreed and adequacy of the parking and kerb ramps are seriously in issue. It would require considerably more evidence than has been presented to satisfy the Tribunal that there has been discrimination, either directly or indirectly, but the fact that two persons, the applicant and Mr Derryk, have attested to parking and other access arrangements that impact differentially upon those with mobility disabilities makes it plausible that further evidence supplementing their evidence may be available. There will also be considerable technical difficulties in proving an indirect discrimination case, but they are not insurmountable.

39. For those reasons, it is fair and just to grant leave to proceed with this application, so that those claims can be tested on the evidence, rather than refusing leave at this stage.

40. The parties are encouraged to confer further as to what steps would be sufficient to resolve this complaint.

41. ORDER

1. Leave to proceed with the Complaint is granted.

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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: 15 August 2024