Carkeet v Chief Executive, Department of Justice & Anor [2026] QCAT 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carkeet v Chief Executive, Department of Justice & Anor [2026] QCAT 11 PARTIES: STEVEN CARKEET (applicant) v CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE (first respondent) JASON DONOHUE (second respondent) APPLICATION NO/S: GAR638-23 MATTER TYPE: General administrative review matters DELIVERED ON: 5 January 2026 HEARING DATE: 11 July 2025 HEARD AT: Brisbane DECISION OF: Member Mott ORDERS: The decision under review dated 4 September 2023 is set aside and substituted with the following decision. The second respondent’s claim is allowed in the amount of $24,050.00. The amount of the second respondent’s financial loss is $24,050.00. The applicant is liable for the second respondent’s financial loss. On payment from the Claim Fund to the second respondent, the applicant is liable to reimburse the Claim Fund in the amount of $24,050.00. CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where vehicle advertised as having brand new engine – where vehicle engine failed shortly after purchase – where buyer lodged claim against fund established by Agents Financial Administration Act 2014 (Qld) – where dealer considered a motor dealer despite using sold vehicle for private purposes – where misleading representation about engine made at time of sale – whether -- 1 of 15 -- 2 buyer purchased car due to misleading representation – financial loss – Human Rights Act 2019 (Qld) considered Agents Financial Administration Act 2014 (Qld), s 6, s 8, s 80, s 82, s 85, s 97, s 100, s 102, s 103, s 105, s 113, s 123 Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 15, s 24, s 25, s 58 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 76, s 80, s 216 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 Bryant v The Chief Executive, Department of Justice and Attorney-General & Anor [2020] QCAT 58 Heath v Medical Board of Australia [2024] QCAT 163 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293 Johnston v Carroll [2024] QSC 2 Laurence v Department of Justice and Attorney-General [2012] QCAT 698 London & Anor v Reynolds [2006] QDC 380 PJB v Melbourne Health [2011] VSC 327 Rees v Mighty Enterprises Pty Ltd & Ors [2015] QCAT 312 Roberts v Harkness (2018) 57 VR 334 APPEARANCES & REPRESENTATION: Applicant: Applicant did not appear Respondents: First respondent: Ms L. Benjamin Second respondent: Self-represented REASONS FOR DECISION [1] On 14 April 2023, Mr Carkeet advertised a 1973 Holden Kingswood TUFF Sedan (‘the car’) for sale online. The advertised price was $89,500.00. The advertisement described the car as having undergone a restoration and turned into a ‘very tuff street car with a brand new 400 chev engine’. [2] Mr Donohue responded to the advertisement. He negotiated via an exchange of messages to purchase the car for $81,550.00 on 18 April 2023. [3] Shortly after he purchased the car, its engine failed. Mr Donohue had the engine examined. The result of the examination was that the engine in the car was not a brand new 400 Chevrolet (“chev”) engine. It was a 350 chev engine and many of its internal components were affected by advanced corrosion and rust. [4] Mr Donohue attempted to reach a settlement with Mr Carkeet for the costs of repairs, replacement parts or a partial refund. They did not come to an agreement. -- 2 of 15 -- 3 [5] On 27 June 2023, Mr Donohue lodged a claim against the Claim Fund established under the Agents Financial Administration Act 2014 (Qld) (‘AFAA’). The amount of the claim was originally $30,000.00, being the asserted cost of parts to rebuild the advertised engine plus installation and towing costs. Mr Donohue later directed the decision maker to proceed with assessing his claim in the amount of $20,000.00. [6] By Notice dated 4 September 2023, a delegate of the chief executive decided: (a) to allow Mr Donahue’s claim in the amount of $20,000.00; (b) Mr Carkeet was liable for Mr Donohue’s financial loss; and (c) to require Mr Carkeet to reimburse the Claim Fund in the amount of $20,000.00. [7] Mr Carkeet filed an application in the Tribunal to review that decision. Mr Carkeet says in his application the decision should be set aside because: (a) he was not acting as a motor dealer when the car was sold to Mr Donohue; (b) the car was driveable when it was delivered to Mr Donohue and it may have been the way Mr Donohue drove the car that caused the engine to fail; (c) the engine he installed did appear to be new; (d) only some parts of the engine require replacing. The replacement of the necessary parts should cost approximately $5,000.00 to $6,000.00; and (e) there was no explanation for the change in the amounts claimed by Mr Donohue during negotiations, $30,000.00 in the lodged claim and a revised amount before the original decision maker of $20,000.00. [8] The matter was heard by the Tribunal on 11 July 2025. Mr Carkeet did not attend the hearing. [9] As a result of evidence given at the hearing about the subsequent sale of the car, the Tribunal made directions allowing the parties to file further evidence and submissions about that matter. The Tribunal also made a direction allowing any party to request a further oral hearing in relation to that issue and any further evidence filed. [10] No party requested a further hearing. Jurisdiction to hear and decide the application to review the decision Jurisdiction [11] Part 5 of the AFAA deals with the jurisdiction of the Tribunal. Section 77 of the AFAA relevantly provides that QCAT has jurisdiction to hear and decide a review of a decision of the chief executive for which an information notice is given under s 102 of the AFAA. [12] Section 102 of the AFAA applies to decisions under s 100 of the AFAA about claims on the fund. Under s 103 of the AFAA, a party who is dissatisfied with the chief executive’s decision under s 100 of the AFAA may apply to the Tribunal as provided for under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) for a review of the decision. [13] I am satisfied Mr Carkeet received a notice that complies with the requirements of s 157(2) of the QCAT Act and s 102 of the AFAA, other than the requirement in s -- 3 of 15 -- 4 157(2)(e) of the QCAT Act about the right to have the operation of the decision stayed. However, s 22 of the QCAT Act is referred to in the notice and the operation of the decision is suspended in any event. In addition, any technical non-compliance with s 157(2) of the QCAT Act does not affect the validity of the reviewable decision. [14] The Tribunal has jurisdiction to hear and decide the application to review the decision. The way in which the Tribunal decides the application to review the decision [15] In exercising its review jurisdiction generally, the Tribunal:1 (a) must decide the review in accordance with the QCAT Act and the AFAA; and (b) may perform the functions conferred on it by the QCAT Act or the AFAA; and (c) has all the functions of the decision maker for the decision being reviewed. [16] The purpose of the review is to produce the correct and preferable decision by way of a fresh hearing on the merits.2 The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made, and there is no presumption that the reviewable decision is correct.3 [17] In reviewing the decision, the Tribunal may:4 (a) confirm or amend the decision; or (b) set the decision aside and substitute its own decision; or (c) set the decision aside and return it to the decision maker for reconsideration. [18] On a review of the decision by the applicant, both the chief executive5 and the claimant, Mr Donohue, are parties to the review.6 The hearing [19] On 28 April 2025, Mr Carkeet was given written notice that his application was listed for hearing on 11 July 2025. Prior to the hearing, Mr Carkeet applied for an adjournment because of a pre-paid booking for a driving event. The adjournment was refused. [20] Mr Carkeet then advised the Tribunal he would not be attending the hearing on 10 July 2025. He did not provide any further reason or make another application for an adjournment. [21] When asked prior to the hearing whether he was attending on the correct date, Mr Carkeet confirmed he was not attending. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19 (‘QCAT Act’). 2 Ibid s 20. 3 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 [9]; Featherstone v Department of Justice and Attorney-General, Industry Licensing Unit (No 2) [2015] QCAT 329 [4]. 4 QCAT Act (n 1) s 24. 5 The names of the parties have been corrected to reflect the chief executive as the first respondent. 6 Agents Financial Administration Act 2014 (Qld) s 103 (‘AFAA’). -- 4 of 15 -- 5 [22] I am satisfied Mr Carkeet was sent written notice of the hearing in accordance with s 92 of the QCAT Act.7 The notice advised that if he failed to appear at the hearing, the Tribunal may proceed and make orders in his absence. [23] The Tribunal proceeded with the hearing under s 93 of the QCAT Act. The relevant provisions of the AFAA [24] The purpose of the AFAA is to protect consumers from financial loss in dealings with agents regulated under an Agents Act. One of the ways that purpose is achieved is by establishing the Claim Fund to compensate people who suffer a financial loss because of claimable events.8 [25] Part 7 of the AFAA deals with claims against the fund. The Tribunal may decide to allow the claim wholly or partly or reject it. The Tribunal may only allow the claim if satisfied on the balance of probabilities that the claimant may make the claim under part 7 division 2 of the AFAA.9 [26] The requirements I must be satisfied of to allow a claim in relation to the decision under review are: (a) the claim was lodged within one year of the claimant becoming aware of the loss, or three years after the claimable event; (b) Mr Carkeet is a relevant person for the purposes of the AFAA. That includes a licensed motor dealer or salesperson; (c) As a relevant person he contravened a section of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (‘MDCAA’) listed in s 82(1)(d) of the AFAA; and (d) Mr Donohue suffered financial loss because of the contravention. [27] If the Tribunal decides to allow the claim in whole or part, I must also consider any amount Mr Donohue might reasonably have received or recovered if not for his neglect or default and any other limitations on recovery from the fund. Analysis Preliminary issue [28] As a general principle, when conducting a fresh hearing on the merits, the Tribunal is standing in the shoes of the decision maker to decide the claim afresh based on the facts and circumstances currently before the Tribunal.10 [29] That includes the information that was before the original decision maker and any further or updated material that is relevant to the decision and can lawfully be considered. [30] I do not consider I am limited to considering the claim as the original decision maker was asked to proceed with it in the amount of $20,000.00. I have considered the claim 7 See also s 76 of the QCAT Act. 8 AFAA (n 8) ss 6, 78. 9 Ibid ss 100(2), 105(2). 10 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [42], 302 [51]; Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2025] HCA 33 -- 5 of 15 -- 6 as put to the Tribunal based on all the information that was filed by the department and further evidence filed by the parties. In its most recent iteration, the amount of the claim is $27,171.00. [31] However, if I am incorrect, the particulars of the claim can be amended prior to making a decision.11 [32] It is clear, both in the material filed in the Tribunal before the oral hearing, at the hearing, and in the material filed after the hearing Mr Donohue is claiming his financial loss exceeds $20,000.00. Mr Carkeet had notice of this, an opportunity to test this claim at the hearing and file material in response to the current particulars of the claim after the oral hearing. He also had the opportunity to test this material and make submissions at a further oral hearing if he elected to do so. [33] I accept the reason Mr Donohue directed the original decision maker to proceed with his claim in the amount of $20,000.00 was that he made a mistake and misread the maximum amount that could be claimed from the fund. [34] For these reasons, if an amendment to the particulars of the claim is required, I am satisfied the requirements of s 97 of the AFAA are met and I would grant it. The requirements of part 7 division 2 of the AFAA [35] The Tribunal may only allow a claim on the fund if satisfied on the balance of probabilities the claim complies with the requirements of part 7 division 2 of the AFAA. I have considered each of those requirements. Was the claim lodged within time? [36] Section 85 of the AFAA provides that a person may only make a claim on the fund for financial loss because of a claimable event within one year after they become aware of their loss or three years after the claimable event, whichever is earlier. [37] The advertisement for the car appeared on 14 April 2023. Mr Donohue purchased the car on 18 April 2023. Between then and when his claim was lodged on 27 June 2023, he became aware that the engine in the car was not the engine that was advertised and of his financial loss. [38] The claim has clearly been brought within the time specified in s 85(2) of the AFAA. Was Mr Carkeet a relevant person? [39] A relevant person generally means someone who holds a license under an Agents Act. It includes an agent, being a motor dealer and their employee, agent or person carrying on business with them.12 An Agents Act includes the MDCAA.13 [40] Mr Carkeet was at all relevant times a licensed motor dealer under the MDCAA.14 [41] Mr Carkeet says in his application that the car was a private family car which was not sold in his capacity as a motor dealer. He says all communications in relation to the sale were handled by his partner. 11 Ibid s 97. 12 Ibid ss 80, 8, sch 1. 13 Ibid sch 1. 14 See department’s documents p 157–9. -- 6 of 15 -- 7 [42] There are messages which purport to be between Mr Carkeet and Mr Donohue negotiating the sale. In one of those messages, Mr Carkeet says he had sold 11 cars from his collection in the previous week, and each was sold for a sum between $80,000.00 to $350,000.00.15 [43] When asked by the Tribunal about the messages relating to the purchase of the car, Mr Donohue said he thought he was dealing with Mr Carkeet including by communications directly through Mr Carkeet’s social media accounts. There is also evidence before the Tribunal that Mr Carkeet said he had acquired the vehicle from another source, and largely rebuilt it over a period of 11 to 14 months. He then sold it to Mr Donohue.16 [44] Section 80(1) of the MDCAA provides: 80 Motor dealer dealing in motor vehicles (1) A motor dealer who is performing an activity the motor dealer is authorised to perform in relation to a used motor vehicle under the motor dealer’s license is taken to be performing the activities of a motor dealer whether or not— (a) the motor dealer is the registered operator, as defined under the Transport Operations (Road Use Management) Act 1995, of the motor vehicle; or (b) the motor dealer or the motor dealer’s associate used the motor vehicle for private proposes. … [45] Section 76 of the MDCAA, sets out what a licensed motor dealer may do, including acquiring, primarily for resale, and selling used motor vehicles.17 [46] In selling the car to Mr Donohue and irrespective of whether Mr Carkeet used the vehicle for private purposes he is taken to be performing the activities of a motor dealer. [47] On balance, and in the absence of sworn evidence from Mr Carkeet, I accept on the basis of the material before the original decision maker including the messages, that Mr Carkeet was acting as a motor dealer in selling the car and is a relevant person for the purposes of s 82(1)(d) of the AFAA. Was there a claimable event? [48] A claimable event in the context of this matter includes a contravention of the provisions of the MDCAA set out in s 82(1)(d) of the AFAA. The decision maker found Mr Carkeet contravened s 216 of the MDCAA. [49] Section 216 of the MDCAA relevantly provides: 216 False representations about goods 15 See department’s documents p 106. 16 See department’s documents p 52 17 See also Motor Dealers and Chattel Auctioneers Act 2014 (Qld) ss 79, 119, 152, (‘MDCAA’). -- 7 of 15 -- 8 (1) A licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods. … (2) Without limiting subsection (1), a representation is taken, for the subsection, to be false or misleading if it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the representation indicates that state of affairs does exist. (3) Also, if a person makes a representation about a matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading. (4) The onus of establishing that the person had reasonable grounds for making the representation is on the person. … [50] The advertisement included the following statement: ‘Selling this TUFF 11/73 Holden Hq sedan it’s a factory V8 car but now has undergone a restoration and turned into a very tuff street car with a brand new 400chev, aluminium AFR headed, large solid roller cam, roller rockers, big springs, big valves, all the normal tuffy stuff.’ [51] Mr Donohue engaged M1 Truck & Trailer Repairs to inspect the engine for damage. Their examination indicates the engine was not a 400 chev. It was a 350 chev engine with advanced corrosion and rust which was inconsistent with new or reconditioned engine components. [52] In his application and written submissions, Mr Carkeet says M1 Truck and Trailer Repairs has a relationship with Mr Donohue because they look after his business trucks and earthmoving equipment. He provides no evidence to support this. [53] Mr Carkeet also says the engine ran while the car was in his possession and when it was delivered to Mr Donohue. He relies on emails which appear to be from three individuals who performed work on the car before it was delivered. Each of those individuals say the car was driven in and around their shops. [54] In addition, he says any damage to the engine is likely to have been caused by the way Mr Donohue drove the car. The only evidence he refers to is an email with a description by the person who delivered the car of Mr Donohue doing some extreme accelerating while trying out the car. [55] Mr Donohue says he drove the car briefly up his street when it was delivered. He registered the car two weeks after he purchased it. He then took the car for the first drive on a main road and the engine failed when it reached a speed of 70km per hour. This was approximately a one-kilometre drive. [56] I accept that the car’s engine was running when it was delivered to Mr Donohue. However, whether the engine was running when Mr Carkeet had the car or when it was delivered to Mr Donohue or how Mr Donohue drove the car, does not address the photographic evidence and the analysis of M1 Truck and Trailer Repairs that the car did not have a brand new 400 chev engine. -- 8 of 15 -- 9 [57] Mr Carkeet also says in his application and written submission that the engine was new when he was building the car or at least, he would not have known about the internal components of the engine unless it was pulled down and inspected. He says things can go wrong with engines when they are sitting around during a car build. He also says that did not happen in this case. [58] I accept the department’s submissions that any representations made by Mr Carkeet must be understood in the context of what he knew about the car. I also accept the department’s submissions that I should consider whether the statements about the car were made under an honest and reasonable but mistaken belief about the state of the engine.18 [59] It is not in dispute that the engine was not a 400 chev engine. I accept the state of the engine when examined by M1 Truck and Trailer Repairs was not consistent with a new or reconditioned engine. Mr Carkeet did not file any cogent evidence that disputed this. [60] I accept the decision-maker’s findings about Mr Carkeet’s knowledge of the vehicle based on Mr Carkeet’s own assertions in the evidence before the decision maker. In particular, he said he had re-built the car over 11 to 14 months and that ‘every single rubber, brush, suspension components, brake lines, disc rotors and callipers are all brand new.’ [61] Even if I accepted that the engine in the car was the engine Mr Carkeet said he purchased and for which he provided a receipt to Mr Donohue,19 the engine was at least three years old at that time and sat for approximately 14 months during the build. [62] I am satisfied a claimable event is established within the meaning of s 82(1)(d) of the AFAA. Did Mr Donohue suffer a financial loss because of the claimable event and if so, what was the loss? [63] For Mr Donohue to successfully claim against the fund, I must be satisfied he suffered a financial loss because of the claimable event. That means that I must be satisfied he relied on the representation in the advertisement when buying the car. [64] As a general proposition:20 if it is proved the defendants with a view to induce the plaintiff to enter into a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement. [65] Mr Carkeet advertised the car for sale in the terms referred to above. Mr Donohue says he bought the car because he thought it had a brand new 400 chev engine. There is no evidence Mr Donohue inspected the car before he purchased it. He subsequently 18 Criminal Code Act 1899 (Qld) s 24, sch 1. 19 The messages exchanged between Mr Carkeet and Mr Donohue indicate Mr Carkeet is not certain this is the engine in the car and that the engine numbers do not match – see p 50 of the department’s documents. 20 London & Anor v Reynolds [2006] QDC 380 [42]. -- 9 of 15 -- 10 purchased and installed a 400 chev engine in the car. For these reasons, I accept Mr Donohue bought the car because he thought it had a brand-new 400 chev engine.21 [66] Financial loss is calculated by comparing the position Mr Donohue would have been in if there was no contravention with the position he is in because of the contravention.22 That is the difference between the purchase price and the real value of what he received.23 [67] At the hearing, the parties to the review approached the issue of financial loss by looking at the cost of repairing or replacing the engine. Mr Donohue said that his loss was $30 000.00, being $28,624.00 in parts to rebuild the engine as evidenced in an invoice from Pryce Engines Pty Ltd. He said a ‘tuff' car has high end components, a fact he is aware of because of his own background as a licensed mechanic. This is consistent with his approach to the claim before the original decision maker.24 [68] The balance of $1,376.00 was for installation and towing costs. [69] Mr Carkeet’s position, on the material he filed before the hearing was that the $30,000.00 was based on rebuilding an engine to Mr Donohue’s specifications rather than a standard 400 chev engine. [70] In some circumstances the Tribunal has indicated a preparedness to accept the cost of repairs as an indication of true value and therefore financial loss.25 I accept that this approach is open in some circumstances.26 [71] This is subject to the qualification that a claimant cannot obtain the difference between the price paid and the value of the car received as well as repair costs. Repair costs should be reflected in the difference in value.27 To do so would in effect be claiming twice for the same loss. [72] Regardless of whether I accept there is a material difference in ‘tuff’ car parts or standard engine parts, at the hearing Mr Donohue gave evidence that he had not purchased the parts to reconstruct the engine. He said he purchased a second-hand engine to sell the car and repay a loan he had taken out to purchase that engine. [73] In the further statement he filed, Mr Donohue said more specifically he purchased a second hand 400 chev engine without external accessories for $16,500.00 on 2 July 2023.28 He says he reused some external parts not damaged in the engine failure to get the car back on the road. 21 See department’s documents p 108 and 114; Statement of Mr Donohue dated 19 October 2025. 22 London & Anor v Reynolds [2006] QDC 380 [46]. 23 Bryant v The Chief Executive, Department of Justice and Attorney-General & Anor [2020] QCAT 58 [15]. 24 Department’s documents p 116. 25 Laurence v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 698 [11]; Rees v Mighty Enterprises Pty Ltd & Ors [2015] QCAT 312 [77] (‘Rees’). 26 Rees (n 27) at [77]; Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 [262]. 27 Laurence v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 698 [11]. 28 Annexures to statement of Mr Donohue dated 19 October 2025. -- 10 of 15 -- 11 [74] He then sold the car on 13 March 2025 for $74,000.00.29 He says in his statement the car was sold for a lesser amount than he paid for it because it had a lesser quality engine, not a brand-new tuff engine. [75] Mr Donohue also now claims $1,126.00. he spent to insure the car and $1,815.00 which is his calculation of his own labour costs to install the replacement engine and towing costs of $180. This brings his total claimed financial loss to $27,171.00. [76] Mr Carkeet did not file any evidence in response to this. [77] He did say in his application that Mr Donohue’s financial loss should be no more than $5,000.00 to $6,000.00. He provides no evidence or basis for this other than saying that only part of the engine needs replacing, and the photographs used in the advertisement for the recent sale of the car indicate Mr Donohue has used some of the original engine parts when re-selling the car. [78] He also relies on this being the amount Mr Donohue was seeking from him to resolve the matter before a claim on the fund was made. [79] I do not accept Mr Carkeet’s position. Even if rusted or corroded parts of the 350 chev engine were replaced Mr Donohue would not have what was advertised and what he thought he purchased. That amount would not place him in the position he would have been in if there was no contravention. It does not adequately address Mr Donohue’s financial loss. [80] Further, Mr Donohue says the reason he had only sought a small contribution from Mr Carkeet initially was that he was not fully aware of his loss at that time. [81] In his further statement Mr Carkeet says that the asserted cost of repairs to the car of $28,624 is not a true and correct amount. The department also submits that on Mr Donohue’s evidence, the repairs were never carried out and therefore the cost of the parts is not relevant to determining Mr Donohue’s financial loss. [82] I accept Mr Carkeet’s position about the invoice for parts to rebuild the engine. The proposed rebuild was not done and the parts to do so were not purchased. The cost of those parts is not the appropriate way to determine Mr Donohue’s financial loss. Conclusion – financial loss [83] Mr Carkeet advertised a TUFF streetcar with a brand new 400 chev engine. I accept that Mr Donohue purchased the car for $81,550. There is no evidence, and no party says, that the purchase price did not reflect the value of the car as advertised. [84] In the absence of any sworn evidence from Mr Carkeet, I accept Mr Donohue’s sworn evidence about the engine that was advertised and the state of the engine he received. I also accept the evidence of the mechanical examination and the photographs of the engine. This supports Mr Donohue’s evidence that he received a car with a 350 chev engine with internal parts affected by advanced rust and corrosion which failed after being driven for approximately one kilometre. [85] It is not in dispute that Mr Donohue purchased and installed a 400 chev engine without accessories for $16,500, to allow him to sell the car because he could not afford to 29 Annexures to statement of Mr Donohue dated 19 October 2025. -- 11 of 15 -- 12 install the engine he says was advertised. He then sold the car for $74,000.00. There is no evidence that the unused rusted components of the 350 chev engine had any value. [86] He says that the difference in the sale price of the car is attributable to the difference in the engine installed. No party has filed any evidence or contends that the difference in the value of the car as reflected in the lower price is attributable to any other cause, such as a decrease in value over time. [87] I accept the decision maker’s finding that Mr Donohue has suffered a financial loss because of the claimable event, and it is appropriate that the Claim Fund respond to it.30 [88] The department submits that based on the evidence before the Tribunal, Mr Donohue’s financial loss is $24,050.00 being the cost of the replacement engine ($16,500.00) and the reduction in the value of the car ($7,550.00) as reflected in the lower purchase price. [89] I accept the submission that on the evidence before the Tribunal this is the best assessment of Mr Donohue’s loss.31 [90] I do not accept the claim as it relates to installation, removal or insurance. [91] There is no independent evidence of the costs of removing the car after the engine failed. [92] In relation to installation costs, Mr Donohue conceded he installed the replacement engine himself. There is no evidence this resulted in any financial loss. [93] In relation to insurance costs, Mr Donohue says the vehicle was unusable and therefore he did not obtain the benefit of the insurance policy he took out. However, regardless of what type of engine and the condition of the engine in the vehicle, I consider Mr Donohue would have needed to insure the car. In the absence of any more specific evidence, the premium paid is not directly attributable to the claimable event. Claimant’s neglect or default [94] No party has presented any cogent evidence about this issue. I accept Mr Donohue attempted to resolve the issue with Mr Carkeet before making a claim on the fund.32 Other limits [95] I am satisfied the amount awarded is less than the maximum amount prescribed by the Agents Financial Administration Regulation 2014 (Qld) (‘Regulation’).33 Compatibility with human rights [96] At the hearing the department submitted that it would be appropriate for the Tribunal, acting in its administrative capacity to consider and apply the Human Rights Act 2019 (Qld) (‘HR Act’). Mr Donohue did not make any submissions. 30 Citing Laurence v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 698 [20]. 31 Ibid at [21] 32 See department’s documents at p 121-122. 33 AFAA (n 8) s 113(2); Agents Financial Administration Regulation 2014 (Qld) s 25. -- 12 of 15 -- 13 [97] Public entities must comply with the HR Act when making decisions. [98] I accept the Tribunal is a public entity34 when it is acting in an administrative capacity.35 I also accept that in reviewing the decision of the chief executive’s delegate, the Tribunal is exercising an administrative function and is acting in an administrative capacity. [99] That means the Tribunal must act compatibly with human rights and give proper consideration to human rights. These obligations apply unless the Tribunal cannot reasonably make a different decision because of a statutory provision.36 [100] The phrase, compatible with human rights, means either the decision does not limit human rights, or, if it does, those limits are justified.37 A decision will limit human rights if it places limitations or restrictions or interferes with the human rights of a person.38 [101] Giving proper consideration to human rights includes identifying the human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.39 [102] I must also construe the AFAA in a way, consistent with its purpose, that is compatible with human rights. Having regard to that obligation, I consider the following human rights may be relevant or apparently limited by a decision to allow the claim. Fair hearing and equality before the law [103] Section 15(3) of the HR Act provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. Section 31 of the HR Act provides that a person who is a party to a civil proceeding has the right to a fair and public hearing. [104] I have considered whether these rights are limited by the Tribunal proceeding to hear the application in Mr Carkeet’s absence. In my view they are not. What is required is a reasonable opportunity for a party to present their case either in writing, orally or both. It includes being informed of the case to be advanced by the opposing party and an opportunity to respond.40 [105] I am satisfied Mr Carkeet had this opportunity. Mr Carkeet was given notice of an oral hearing at which he had the opportunity to appear, including by video conference or telephone, question any witnesses he wished to, potentially call witnesses himself and make submissions. He informed the Tribunal he was not attending the hearing. [106] The Tribunal made directions requiring each of the parties to file and serve any evidence to be relied on at the hearing. Each party did so. Mr Carkeet had the opportunity to file and serve evidence about Mr Donohue’s claim both before and 34 See s 9(1)(f) of the Human Rights Act 2019 (Qld) (‘HR Act’); see also Heath v Medical Board of Australia [2024] QCAT 163 [30]. 35 HR Act (n 39) s 9(4)(b). 36 Ibid s 58(2). 37 HR Act (n 39) s 8; Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 [305]. 38 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 [306]. 39 HR Act (n 39) s 58(5). 40 Roberts v Harkness (2018) 57 VR 334. -- 13 of 15 -- 14 after the hearing. He had the opportunity to ask for a further oral hearing in relation to further evidence that was filed. [107] In addition, the Tribunal considered the issues raised in his application, submissions and material filed both before and after the hearing as far as they were relevant to the decision. Property rights [108] Section 24 of the HR Act recognises the right to own property and not to be arbitrarily deprived of a person’s property. I am satisfied that the concept of property includes money.41 [109] This decision imposes an obligation on Mr Carkeet to reimburse the Claim Fund in the amount of $24,050.00. This may engage the right with respect to arbitrary deprivation of property. [110] I am satisfied that any limitations on Mr Carkeet’s property rights are lawful. The concept of arbitrariness means capricious, resulting from unpredictable conduct, unjust or unreasonable in the sense of being disproportionate to the legitimate aim.42 That proportionality analysis is the same as the justification analysis under s 13 of the HR Act. [111] I consider any deprivation of property in this case is not arbitrary because it is reasonable and demonstrably justifiable within the meaning of s 13 of the HR Act. [112] A purpose of the AFAA is to protect consumers from financial loss in dealings with agents regulated under an Agents Act. One of the ways that purpose is achieved is establishing the publicly funded Claim Fund to compensate people who suffer a financial loss arising from claimable events and making decisions in relation to the administration of the fund.43 [113] I am satisfied this is a legitimate purpose44 and that allowing the claim against the fund helps to achieve the purpose. Requiring a reimbursement helps to achieve the purpose of managing finite public resources. [114] On the evidence before the Tribunal, I am satisfied there is no less restrictive way to achieve that purpose. On balance, I consider the limitation strikes a fair balance between Mr Carkeet’s property rights and the interests of the community in compensating consumers for their financial losses in dealing with agents and the management of finite public resources. Privacy and reputation [115] I have considered whether a decision of the Tribunal may limit Mr Carkeet’s rights in respect of his reputation. However, the right with respect to reputation is concerned with unlawful attack. [116] My decision finding Mr Carkeet liable for Mr Donohue’s financial loss is made in accordance with the AFAA. I do not consider this right is limited. 41 PJB v Melbourne Health [2011] VSC 327 [90]. 42 Johnston v Carroll [2024] QSC 2 [367]. 43 AFAA (n 8) ss 6, 78. 44 HR Act (n 39) s 8; Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293 [300]. -- 14 of 15 -- 15 Conclusion [117] Mr Donohue has made a claim on the fund within the time limit imposed by the AFAA. Mr Carkeet is a relevant person for the purposes of deciding whether there is a claimable event under the AFAA. [118] There is a claimable event, being a contravention of s 216 of the MDCAA. [119] As a result of that event Mr Donohue suffered a financial loss in the amount of $24,050.00, and Mr Carkeet is responsible for that loss. -- 15 of 15 --