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" 1. 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. 2. 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. 3. 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. 4. By the time of the leave application, those works had been completed and the Council contended that there was satisfactory parking available. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. The Tribunal considered the oral and written submissions in the matter and the contents of the President's Report from Anti-Discrimination NSW.