QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Ostopowicz v Redland City Council  [2022] QCAT 136	
PARTIES:	Christine ostopowicz	

(Applicant)	

	v	
	redland city council	

(Respondent)	

APPLICATION NO:	ADL067-20	
MATTER TYPE:	Anti-discrimination matters	
DELIVERED ON:	19 April 2022	
HEARING DATE:	17 March 2022	
HEARD AT:	Brisbane	
DECISION OF:	Member Goodman	
ORDERS:	The complaint is dismissed.	
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where applicant alleges insufficient car parks available to meet her needs in a public carpark – where term reasonable 
Anti-discrimination Act 1991 (Qld) s 6, s 7, s 11, s 46, s 204, s 205, Schedule 1
Human Rights Act 2019 (Qld) s 13, s 15, s 31
Transport Operations (Road Use Management) Act 1995 (Qld)
State Penalties Enforcement Act 1999 (Qld)	
APPEARANCES & REPRESENTATION:	

Applicant:	
Self- represented	

Respondent:	
Ms Kennedy	

REASONS FOR DECISION
BACKGROUND
[1]	Ms Ostopowicz resides on Coochiemudlo Island off the coast of Brisbane. The island is only accessible by boat, ferry, or barge, as there is no bridge. Parking arrangements at the relevant car park on the mainland are administered by the Redland City Council. 
[2]	Ms Ostopowicz states that she struggles with balance, and “cannot walk over uneven terrain, stairs or changes in ground surface without great difficulty and great focus”. She states that she suffered a frontal lobe injury, a fractured spine, and a bowel injury in a 2014 motor vehicle accident. She has a disability permit for her car. 
[3]	Ms Ostopowicz’s claim, essentially, is that the Council has discriminated against her by failing to provide sufficient car parking arrangements to ensure that she has access to her motor vehicle on the mainland. The discrimination claim was begun after Ms Ostopowicz was issued with parking infringement notices in March 2020. 
[4]	In her written claim, Ms Ostopowicz states that she is only able to walk 200 metres. At the hearing, Ms Ostopowicz stated that:
(a)	In fact she can’t walk 200 metres - part of her disability is not understanding numbers and so she is unsure how far 200 metres is;
(b)	She doesn’t really understand metric measurements due to having lived in America for a long time; and
(c)	Her medical condition has deteriorated since the paperwork was provided to the Council and the Tribunal.
[5]	I have a page from a medical report which appears to confirm that Ms Ostopowicz was diagnosed with a lumbar spine fracture, PTSD, and a traumatic brain injury in 2014. At the hearing, I was provided with a letter dated 17 December 2021, from a doctor certifying that Ms Ostopowicz is unable to move her Council provided rubbish bins to the kerb due to a number of disabilities. 
[6]	Ms Ostopowicz had initially provided written evidence that:
(a)	There are seven accessible parking spots in the car park, four spots close to the jetty, and three others “across undulating terrain and over 400m walk from the jetty and the access to the ferry”; 
(b)	The three spots away from the jetty are not an option for her due to the nature of her disability;
(c)	The four closer accessible parking spots are not sufficient as they are always full on the weekends and often during the week;
(d)	Parking options available to other members of the public and even other members of the disabled community are not available to her because of her particular disabilities.
[7]	Following the hearing, it is not in dispute that:
(a)	In March 2020, infringement notices were issued to Ms Ostopowicz on three occasions when she parked her car in breach of the relevant parking requirements as signed. After her requests to waive the fines were initially refused, the matter proceeded to the Magistrates Court. Ultimately, the respondent agreed to waive the fines;
(b)	The respondent is empowered to regulate parking in an off-street regulated parking area and a person against whom an infringement notice is issued must either pay the fine or elect to have the matter determined in the Magistrates Court. This process was followed in this case;
(c)	The carpark has been declared an off-street regulated parking area. The Building Code of Australia provides, relevantly, that one accessible car parking space is required for every 100 car parking spaces. Of 353 available car spaces, the council has provided 263 car parks, 7 accessible car parks, 12 motorcycle parks and 71 boat trailer parks, thus exceeding the minimum requirement for accessible car spaces;
(d)	The seven accessible car parks are between 88.86 m and 197.06 m from the entrance to the ferry terminal, accessible via a footpath;
(e)	Some of the accessible carparks have close proximity to the park area and public toilets; 
(f)	Availability of carparks at any given time depends on demand, which varies; and
(g)	Some of the boat trailer parks are converted to car parks during the week (except public holidays), and members of Voluntary Marine Rescue are authorised to make that change on weekends and public holidays if conditions are unfavourable for boating. 
[8]	Ms Ostopowicz states that the changes to the number and types of car parks available are confusing.
THE LEGISLATION
[9]	Ms Ostopowicz alleges indirect discrimination. The legislative framework is set out in the Anti-Discrimination Act 1991 (Qld). One purpose of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination. Discrimination is prohibited on the basis of an attribute, including an “impairment”, in the supply of goods and services. 
[10]	Impairment is defined to include total or partial loss of the person’s bodily functions, or a malfunction of the person’s body. I am satisfied that Ms Ostopowicz has an impairment, as defined. 
[11]	Services are defined to include access to and use of any place or facilities that members of the public are permitted to use, services connected with transport and travel, and services provided by a local government. I am satisfied that the respondent provides services as defined. 
[12]	Indirect discrimination has occurred if the Council has imposed a term which Ms Ostopowicz (a person with “an attribute”) is not able to comply and with which a higher proportion of people without the attribute are able to comply, and the term is not reasonable. A term includes a condition or requirement. 
[13]	Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example, the consequences of failure to comply with the term, and the cost of alternative terms, and the financial circumstances of the person who imposes the term. 
[14]	It is for Ms Ostopowicz as the complainant to prove, on the balance of probabilities, that the respondent contravened the Anti-Discrimination Act. However, as Ms Ostopowicz has complained of indirect discrimination, it is for the respondent to prove, on the balance of probabilities, that the term complained of is reasonable. 
[15]	The Tribunal must determine whether indirect discrimination has occurred. 
THE CLAIM
[16]	Ms Ostopowicz claims that she has been subject to indirect discrimination. In her written material, she claims: 
(a)	The respondent has imposed a term that in order to access the ferry terminal by car at Victoria Point on weekends, she must park in parking spaces that are 300-400m from the entry to the ferry terminal;
(b)	She cannot comply with this term because of her physical and mental disabilities which reduce her ability to walk distances greater than 200m and on any kind of uneven terrain;
(c)	People without mobility issues, and some other people with disabilities, can easily comply with this term but she cannot; and
(d)	The term is not reasonable. 
[17]	I am not satisfied that the respondent has imposed a term that Ms Ostopowicz must park 300 – 400 metres away from the entrance to the ferry terminal. At the hearing, Ms Ostopowicz was unable to articulate the “term” as that word is used in the Act. I am satisfied that the respondent has imposed a “term” that people using the car park are required to park in accordance with regulated signage. 
[18]	Ms Ostopowicz states that as a consequence of unlawful, indirect discrimination she:
(a)	Suffered serious emotional distress in receiving three infringement notices in one week. This caused her worry that an unknown number of notices were still to arrive, and she would not be able to afford to pay them;
(b)	Suffered distress and embarrassment in having to complete appeal forms and disclose details of her physical and mental disabilities to strangers;
(c)	Felt embarrassed in receiving rejections of her appeals and her apparent inability to understand parking rules and regulations;
(d)	Suffered emotional distress and reluctance to visit the mainland due to her inability to access her car if it was parked more than 200m away from the jetty; and
(e)	Suffered distress in losing her independence and limited mobility due to the fear of receiving more fines from the respondent and not being able to park her car at the car park.
[19]	In her complaint to the Human Rights Commission, Ms Ostopowicz states that she is unable to catch a bus due PTSD arising from bullying and abuse by a bus driver when she couldn’t navigate the bus steps. She says she cannot use Uber because of scams and abuse by their drivers. She says she is unable to afford the cost of taking her car on the barge. At the hearing, she clarified that she is not able to afford the cost of the barge, taxis or Uber regularly, and advised the Tribunal that she is prevented from using buses by her disabilities. 
[20]	Ms Ostopowicz complains of incidents of discrimination which were said to occur on the three days on which parking fines were imposed. She says that she believes she has been discriminated against because the respondent has not accommodated her disability. She feels that she does not have the same rights as everyone else.
[21]	Ms Ostopowicz applied for an order in the following terms:
(a)	The respondent is declared to have unlawfully discriminated against Ms Ostopowicz on the basis of her disability, in the way they communicated and in their refusal to find a solution accommodating her disabilities.
(b)	The respondent is ordered to pay compensation for loss and damage suffered by the Ms Ostopowicz because of discrimination, in the amounts of:
(i)	$7,000 for distress, embarrassment and humiliation suffered; 
(ii)	$2,000 for past and future economic loss suffered, or to be suffered, by the Ms Ostopowicz.
(c)	The respondent pay the Ms Ostopowicz’s costs of the proceedings in the Tribunal. 
[22]	At the hearing, Ms Ostopowicz advised that she had received assistance in drafting her paperwork and was not able to expand on it, or answer questions in relation to the orders she was seeking. She was not able to particularise the economic loss component of her claim, except to say that she will be issued with future infringement notices and fines if she parks in an area which is not designated as available for her. There is no evidence of the Ms Ostopowicz incurring costs in these proceedings. 
[23]	At the hearing, Ms Ostopowicz advised that she is not seeking a financial payout but seeks, in essence, an arrangement whereby she is able to leave her car in an accessible car space on the mainland so that she can access it whenever she catches the ferry from the island. She says that her inability to do that has had a detrimental effect on her quality of life. 
[24]	It seems to me that the indirect discrimination is alleged on the basis of the respondent’s insistence that Ms Ostopowicz comply with parking requirements as signed. Her comments regarding communications from respondent, and the effect they had on her, are not relevant to consideration of the imposition of a “term”. The respondent states that it communicated with her as required – that is, in responding to her complaints and requests to waive the fines imposed. 
THE DECISION
[25]	There are some difficulties with the evidence. There is no direct medical evidence as to how far Ms Ostopowicz is able to walk. Ms Ostopowicz offered, during the hearing, to telephone an occupational therapist to obtain such evidence. I indicated that it was not necessary. For the purposes of the decision, I accept Ms Ostopowicz’s oral evidence that she has great difficulty in walking more than a short distance. 
[26]	I find that the respondent has imposed a term that car park users must park in accordance with regulated signage. Based on the available evidence, I accept that a higher proportion of people without Ms Ostopowicz’s attribute are able to comply with that term because they are not limited to parking within a short distance of the ferry entrance. 
[27]	I must determine whether the term is reasonable. I note that if Ms Ostopowicz does not comply with the term, she will be issued with an infringement notice. Ms Ostopowicz was asked to identify alternatives. She mentioned a multi-story carpark could be built, or a bridge. The respondent indicated that those suggestions had not been costed, but they would be very expensive. 
[28]	Ms Ostopowicz suggested that she could be issued with a particular kind of permit which allowed her to park anywhere in the carpark, for any length of time. The evidence from the respondent is that there is no authority to issue a permit to allow a person to park outside of regulated parking. In particular, the respondent has no power to issue a permit that would allow Ms Ostopowicz to park in boat trailer spots when the accessible car parking spaces are full. 
[29]	The respondent provided evidence that it was not possible to flexibly convert parking spaces from car spaces to accessible car spaces, and vice versa, as accessible car spaces are wider, and other requirements apply. 
[30]	Ms Ostopowicz suggested that the respondent could agree not to issue a parking infringement notice to her if she was parked other than as permitted, considering her particular disabilities. The respondent was not minded to enter into that arrangement. 
[31]	I take into account the respondent’s evidence that the car park is a multi-use car park, catering for a broad community including able bodied persons, disabled permit holders, drivers of cars with boat trailers, and motorbikes. Expansion of the carpark is limited – it is at the water’s edge on three sides, and the respondent states there is a “cliff” on the other edge. 
[32]	I take into account that the car park services the ferry terminal, boat ramp, barge, park, and recreation area, and that the respondent must balance community interests in responding to parking demands in a mixed-use area. I accept that the respondent has complied with the relevant codes (has in fact exceeded the minimum requirements) in relation to the number of accessible carparks to be provided. 
[33]	I accept that Ms Ostopowicz is not always able to find an accessible carpark close to the terminal. I note that even if further spaces were available, there is no guarantee that an accessible space would be available in a sufficiently close proximity to meet Ms Ostopowicz’s stated needs. 
[34]	I accept that the respondent has access to significant resources. I find, however, that those resources are limited and that the respondent must work within its budget. 
[35]	Taking all of these factors into account, I am satisfied that the respondent has established that the term is reasonable in all the circumstances. Accordingly, I am satisfied that there has not been indirect discrimination, and Ms Ostopowicz’s claim is dismissed. 
HUMAN RIGHTS ACT
[36]	In making this decision, I have had regard to the Human Rights Act 2019 (Qld). Ms Ostopowicz’s human rights, in particular her rights to a fair hearing and to recognition and equality before the law were considered. I am satisfied that this decision is compatible with human rights and in accordance with the legislation.