David Fisher

Partner
Professional IndemnityInsurance

About David

David is recognised for his ability to get to the heart of a dispute at an early stage, allowing him to formulate strategies designed to achieve practical and timely outcomes.

David brings more than 12 years' experience in the areas of insurance and commercial litigation, with a particular focus on the specialty lines of professional indemnity, directors and officers, and management liability.

He is independently recognised by Best Lawyers Australia for Professional Malpractice Litigation.

David advises on and defends disputes against professionals, company executives and their insurers across a wide range of professions and industries, having acted for:

  • Accountants
  • Agronomists
  • Anaesthetists
  • Architects
  • Barristers
  • Beauty Therapists
  • Building Consultants
  • Building Certifiers
  • Chemists
  • D&C Contractors
  • Designers
  • Engineers
  • Finance Brokers
  • Financial Planners
  • Incorporated Associations

  • Insurance Brokers
  • Investment Fund Managers
  • IT Consultants
  • Landholders
  • Manufacturers
  • Marine Surveyors
  • Medical Practices
  • Medical Testing Laboratories
  • Mortgage Brokers
  • Occupational Therapists
  • Quantity Surveyors
  • Real Estate Agents
  • Receivers
  • Sports Agents
  • Solicitors

He acts in the full spectrum of matters from unlitigated disputes to the conduct and strategic management of complex, multi-party litigation in State and Federal Courts, Tribunals and other quasi-judicial forums, involving allegations of negligence and breach of contract, claims under the Corporations Act and Australian Consumer Law, intellectual property disputes, disciplinary complaints (often concurrently with a civil claim), fidelity claims and local council enforcement actions.

Regardless of the matter, from the initial stages David brings a commercial focus to minimise the impact on insurers and their insureds so they can move beyond the distraction of a dispute and return focus to their careers and businesses. David regularly represents clients in mediations and other ADR processes, to achieve that end.

Having spent his career developing and honing his knowledge of insurance policy interpretation and the operation of the Insurance Contracts Act, David also regularly advises insurers in a coverage capacity on related policy issues, and acts in the strategic management and resolution of coverage disputes. David is cognisant of and adept at managing the competing dynamics often at play, and strives to ensure a client’s interests are properly protected while at the same time preserving the ongoing professional and commercial relationship with other relevant stakeholders.

 

Awards & Recognition

 Best Lawyers Australia

  • Professional Malpractice Litigation (2022-2023)
  • Insurance Law (2022-2023)

 

Qualifications

  • Admitted as a solicitor in the Supreme Court of Queensland in December 2009
  • Bachelor of Laws (Honours) – Griffith University
  • Bachelor of International Business – Griffith University

 

Memberships & Appointments

 

Relevant Experience

  • Acted for a civil engineer in Supreme Court proceedings involving the failure of an industrial underground storage tank, seeking damages of $3 million. Expert evidence prompted a third party claim against the tank manufacturer and a successful interlocutory application struck-out a significant component of the plaintiff’s damages claim (Mirvac Queensland Pty Ltd & Anor v Shamrock Civil Engineering Pty Ltd & Ors [2015] QSC 271), which reduced the pleaded claim to little more than $300,000. While the plaintiff was afforded leave to re-plead, the application achieved the objective of highlighting the weakness in the contested damages component, and the matter was promptly progressed to mediation with a favourable resolution achieved with contributions from all respondent parties.
  • Acted for a boat manufacturer in simultaneous Federal Court proceedings by two former distributors for alleged breaches of the Franchising Code of Conduct following termination of their distributor agreements, seeking damages of $1 million and $3 million respectively. Identifying that the quantum of the claims were grossly overstated, an effective Calderbank offer caused the first plaintiff to compromise the claim on the first day of trial for a fraction of the pleaded value and less than the amount of the offer, and the second claim was resolved on equally favourable terms shortly after.
  • Acted for an IT consultant in Supreme Court proceedings seeking damages of $2.6 million arising from the loss of the plaintiff’s (an accounting firm) data following upgrade of its IT system. By obtaining expert forensic accounting evidence David was able to dismantle a number of the plaintiff’s alleged heads of loss, which resulted in a settlement at mediation for a fraction of the pleaded sum.
  • Acted for a real estate agent in Supreme Court proceedings involving the termination of four off the plan sales contracts in a mixed use development owing to non-compliance with the disclosure statement requirements prescribed by section 213 of the Body Corporate and Community Management Act 1997 (Qld). The vendor accepted each of the terminations and re-sold the lots for $1.2 million less than had originally been contracted for, and commenced proceedings against its conveyancing solicitors, who in turn pursued a third party claim against the insured. A number of arguments were advanced apportioning a greater degree of responsibility to the conveyancing solicitor, and the matter resolved at mediation with a minority contribution by the agent.
  • Acted for a group of anaesthetists in responding to allegations by a competing practice that the insureds’ on call roster provided to two private Hospitals was unlawful, constituting a contravention of the restrictive trade provision under the Australian Consumer Law. The matter involved working closely with the insureds and the subject Hospitals to ensure the insureds’ on-call practices complied with their obligations to the Hospitals and patients, while resisting the claimants’ demands. A robust response resulted in the matter dissipating without any further action being taken.
  • Acted in the defence of an insurer in Supreme Court proceedings involving a disputed indemnity claim arising from the discharge of water from a fire sprinkler system over two items of industrial machinery. The plaintiff insured alleged the insurer failed to adequately discharge its obligations to repair the machinery, seeking damages of $50 million in indemnity and loss of opportunity profits for breach of the policy. The defence strategy involved an attack on the pleadings culminating in a contested strike-out application (Birbilis Bros Pty Ltd v Chubb Fire and Security Pty Ltd [2018] QSC 3) and third party claims were pursued against the entities responsible for repairing the machinery (with fourth party claims then being pursued between them). The highly complex matter involved extensive evidence from 71 lay witnesses and 25 experts across eight disciplines, but despite the body of evidence adduced by the insured it was identified at an early stage that the loss of opportunity damages suffered from a number of legal and factual difficulties. The insured however, backed by a litigation funder maintained an intractable position throughout, and it was only through the systematic dismantling of its case at trial that the proceedings resolved (on day 10 of a 6-week trial) on commercially favourable terms.
  • Acted for an accountant in District Court proceedings by a former client alleging the insured failed to identify when completing the client’s annual financial statements that one of the client’s employees had misappropriated around $450,000 from the client’s business. A forensic examination of the circumstances of the misappropriation demonstrated that it was not reasonably identifiable within the scope of the insured’s engagement, and a robust defence on that basis resulted in the claim being abandoned without any claim payment being made.
  • Acted for a finance broker in successfully defending at trial District Court proceedings involving fraudulently obtained finance for two motor vehicles that did not exist. With an effective Calderbank offer costs were recovered on an indemnity basis (BOQ Equipment Finance Pty Ltd v Visposin Pty Ltd & Ors [2011] QDC 266).
  • Acted for a number of directors of a publicly listed energy company in Supreme Court proceedings by a former employee involving contravention of the Whistleblower protections in the Corporations Act, one of the first such actions of its kind. The matter involved a raft of alleged conduct spanning a number of years, embodied in a 220 page pleading. To narrow the focus of the dispute a successful strike-out application was pursued prior to filing defences, with substantial portions of the pleading struck-out without leave to replead in a number of instances, leaving much of the claim unviable (Quinlan v ERM Power Ltd & Ors [2021] QSC 35).