City of Parramatta Council v Hardiman

Representation: Counsel:
P Griffin SC and B Fogarty (Appellant)
Solicitors:
McCabes Lawyers (Appellant)
Respondent (Self-represented)

File Number(s): 2025/00330362

Publication restriction: Nil

REASONS FOR DECISION

Overview

1. This is an internal appeal from the decision of the Tribunal made on 31 July 2025 in the Administrative and Equal Opportunity Division, constituted by Senior Member H Dixon SC and General Member K Stubbs, whereby the Tribunal held that City of Parramatta Council (the Council), which was the respondent below and is the appellant in this appeal, discriminated against Pamela Hardiman (Ms Hardiman), who was the applicant below and is the respondent in this appeal, in the terms it provided services to a reserve in contravention of s 49M(1)(b) of the Anti-Discrimination Act 1977 (NSW) (A-D Act): Hardiman v Paramatta City Council [2025] NSWCATAD 259 (the Liability Decision).

2. On 23 October 2025, the Tribunal constituted by the same members in the same proceedings ordered the Council to provide an accessible disability parking space to the reserve within three months: Hardiman v Paramatta City Council (No 2) [2025] NSWCATAD 260 (the Remedy Decision).

3. The central issue in this appeal has been whether the Tribunal failed to accord procedural fairness to the Council by failing to give it an opportunity to make closing submissions before the Tribunal. We are satisfied that there was a failure by the Tribunal to accord procedural fairness to the Council and that failure was material in the sense that there was a realistic possibility that the Liability Decision could have been different. It follows that we have decided to allow the appeal, to set aside the Liability Decision and to remit the proceedings to the Tribunal for reconsideration on the basis of the evidence before the Tribunal and such further evidence that the Tribunal may allow.

The Background to the Appeal

4. It was an uncontroversial matter before the Tribunal that Ms Hardiman has a disability. The question before the Tribunal was whether the Council discriminated against Ms Hardiman in the provision of services, namely, access to a reserve within its local government area. The Tribunal in the Liability Decision found that there had been discrimination by the Council.

5. The Tribunal in the Liability Decision at [112] set out the five matters that Ms Hardiman needed to establish indirect disability discrimination:

“(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.”

6. The Tribunal dealt with each of those five issues as follows:

7. as to the first issue, it noted that the question of whether Ms Hardiman suffered from a disability was established ([124]);

8. as to the second issue, it found that the Council did impose a condition or requirement in accessing the reserve and that Ms Hardiman could only access the reserve by driving or being driven to the reserve and using the available parking ([125]-[132]);

9. as to the third issue, it was satisfied that a higher proportion of persons are able to comply with the requirement than Ms Hardiman ([133]);

10. as to the fourth issue, it found that the requirement or condition was not reasonable ([134]-[140]);

11. as to the fifth issue, it found that Ms Hardiman was not able to comply with the requirement or condition ([141]-[150]).

12. The Tribunal then found that there was discrimination within s 49(1)(b) of the A-D Act that was unlawful ([155]-[164]) and that the Council had failed to establish unjustifiable hardship ([165])-([168]).

13. The Tribunal dealt with the issue of whether closing submissions were made as follows:

14. it stated the parties made closing submissions ([15]);

15. it stated that at the hearing on 18 February 2025 the Council had been offered the opportunity to make closing submissions on the evidence before the Tribunal. Closing submissions were in fact made both in writing and orally ([172]);

16. it said after the Council closed its case and after those submissions were made, at the request of counsel for the Council, it reluctantly gave leave to the Council to file further evidence which may have involved the need for further submissions ([173]).

The history of the appeal

9. On 28 August 2025, the Council commenced this appeal by lodging a notice of appeal in which it listed six grounds of appeal. Ground 1 related to an alleged denial of procedural fairness. Grounds 2 to 5 related to findings being against the weight of evidence, in respect of which leave to appeal was sought. Ground 6 related to a matter of bias.

10. Procedural directions were made for the hearing of the appeal. On 6 January 2026, the Council lodged its bundle of documents which relevantly included a transcript of the hearing. On 13 February 2026, the Council lodged its outline of submissions.

The hearing of the appeal

11. At the hearing of the appeal today, the Council was represented by Mr P Griffin SC and Mr B Fogarty of counsel, and Ms Hardiman represented herself.

12. At the commencement of the hearing, senior counsel for the Council indicated:

13. ground 1 was confined to the question raised by the Council’s outline of submissions at [16]:

“The Tribunal erred in law by denying the Appellant procedural fairness and/or natural justice in failing to give it the opportunity to make closing submissions as to the question of liability under ss 49B(1)(b), 49C and 49M of the AD Act.”

2. grounds 2 to 5 that were the subject of the application for leave to appeal raised the question of whether the Tribunal made a decision that was against the weight of evidence or on the basis of insufficient evidence and at several points in the Council’s outline of submissions reference was made to evidence given at the hearing that was not referred to in the Liability Decision;

3. ground 6 was not pressed.

4. At the commencement of the hearing, we raised our preliminary view that there had been a material failure to accord procedural fairness to the Council by the Tribunal and that the appeal should be allowed, the Liability Decision be set aside and the proceedings be remitted to the Tribunal for reconsideration. We referred to the Liability Decision at [15] and [172] and passages of the transcript of the hearing (the Council’s bundle of documents, pp 323, 1-5; 326, 12-16; 327, 18-28; 328, 28-32; 332, 32-37; 333, 16-18, 31).

5. On the basis of that material, we indicated that our preliminary view was the evidence demonstrated that the Tribunal had given no opportunity to the Council to make oral or written submissions. We referred to the judgment of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [6 ], [7], [13] and [14] (Gageler CJ and Gordon, Edelman, Steward, Gleeson, Jagot JJ) (citations omitted):

“[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. …”

“[13] The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.

[14] The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.”

15. In response to our invitation to the parties to address our preliminary view:

16. senior counsel for the Council in substance did not wish to say anything;

17. Ms Hardiman accepted that there had been no opportunity to provide oral or written closing submissions, but submitted that there was no realistic possibility that the Liability Decision could have been different. She referred to the testimony of Mr Murray, who was the witness for the Council, who had recommended accessible parking be provided to the reserve and other aspects of the evidence of Mr Murray;

18. in reply, senior counsel for the Council said that by the failure of the Tribunal to accord procedural fairness the Council had not had the opportunity to raise the other matters in the notice of appeal.

19. The submission made by Ms Hardiman, as to the evidence of Mr Murray does not really address the issue as to whether there could have been a different decision in relation to the four requirements mentioned in the Liability Decision at [112] that were in contest as well as the question of unjustifiable hardship.

20. We are satisfied of the following matters:

21. the failure of the Tribunal to give the Council an opportunity to make oral and/or written closing submissions constituted a failure to accord procedural fairness;

22. a failure to accord procedural fairness constitutes a question of law: Donohoe v Albulario [2025] NSWSC 9 at [39] (Basten AJ);

23. the failure of the Tribunal to accord procedural fairness to the Council was material in the sense that there was a realistic possibility that the Liability Decision could have been different if the error had not occurred in view of the evidence referred to in the notice of appeal that was not referred to in that Decision. We note, as mentioned by the High Court in LPDT at [14], that meeting that threshold is not demanding or onerous.

24. We are satisfied that it will be necessary to remit the proceedings to the Tribunal for reconsideration as provided for by s 81(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) on the basis of the evidence before the Tribunal together with such further evidence that the Tribunal may allow.

Postscript

19. We draw attention to the following matters:

20. the Appeal Panel constituted by Principal Member D Robertson on 19 September 2025 noted in order 7 that the appeal was brought against the Liability Decision, that the decision on remedies was presently reserved, and that the Council may seek to amend the notice of appeal to challenge further orders made by the Tribunal;

21. no application has been made to amend the notice of appeal to challenge the Remedy Decision;

22. while it is inevitable that the Remedy Decision will need to be set aside in view of the fact that the Liability Decision on liability is set aside, that matter was not before us today;

23. on 23 December 2025, the Council lodged an application to stay the Remedy Decision. That matter was not before us today, but it appears that the application will have no utility in view of the Liability Decision being set aside.

24. In view of the failure of the Tribunal to accord procedural fairness there was material to the Council it is unnecessary to consider the other grounds of the appeal.

Orders

21. We make the following orders:

22. The appeal is allowed.

23. Orders 1 and 2 made on 31 July 2025 are set aside.

24. The proceedings are remitted to the Administrative and Equal Opportunity Division for reconsideration on the basis of the evidence before the Tribunal below and such further evidence as the Tribunal may allow.

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