David Fisher

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. He has 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 a 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 preserving the ongoing professional and commercial relationship with other relevant stakeholders.

 

Awards & Recognition

 Best Lawyers Australia

• Insurance Law (2023-2024)
• Professional Malpractice Litigation (2022-2024)

 

Qualifications

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

 

Memberships & Appointments

• Australian Professional Indemnity Group
• Queensland Law Society

 

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. The matter was promptly progressed to mediation and a favourable resolution achieved contributions from all respondent parties.
• Acted for a boat manufacturer in simultaneous Federal Court proceedings by two former distributors seeking damages of $1 million and $3 million respectively for alleged breaches of the Franchising Code of Conduct following termination of their distributor agreements. Having identified the quantum of the claims as 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. Shortly after this, the second claim was resolved on equally favourable terms.
• Acted for an IT consultant in Supreme Court proceedings, who sought 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 several of the plaintiff’s alleged heads of loss. This 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 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 originally contracted for, commencing proceedings against its conveyancing solicitors who, in turn, pursued a third-party claim against the insured. Several arguments were advanced, apportioning a greater degree of responsibility to the conveyancing solicitor. The matter resolved at mediation with a minority contribution by the agent.
• Acted for a group of anaesthetists, responding to allegations by a competing practice that the insureds’ on-call roster for two private hospitals was unlawful and constituted 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). 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. However, despite the body of evidence adduced by the insured, it was identified at an early stage that the loss of opportunity damages suffered from several legal and factual difficulties. Back by a litigation funder, the plaintiff insured maintained an intractable position throughout. It was only through the systematic dismantling of its case at trial that the proceedings resolved (at day 10 of a six-week trial) on commercially favourable terms.
• Acted for an accountant in District Court proceedings brought by a former client who alleged that the insured, when completing the client’s annual financial statements, failed to identify that one of the client’s employees had misappropriated around $450,000 from the client’s business. A forensic examination of the misappropriation demonstrated that it was not reasonably identifiable within the scope of the insured’s engagement. A robust defence on that basis resulted in the claim being abandoned without any claim payment being made.
• Acted for a finance broker at trial, successfully defending 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 several directors of a publicly listed energy company in Supreme Court proceedings by a former employee. The matter involved contravention of Whistleblower protections in the Corporations Act (one of the first such actions of its kind) and a raft of alleged conduct spanning several years and embodied in a 220-page pleading. To narrow the focus of the dispute, Davod pursued a successful strike-out application prior to filing defences. This resulted in substantial portions of the pleading being struck out without leave to replead in several instances, leaving much of the claim unviable (Quinlan v ERM Power Ltd & Ors [2021] QSC 35).