Australian Dictionary of Biography

Neil McPhee, c.1990, by David Johns

Victorian Bar Collections

Neil Raymond McPhee (1929–1998), barrister, was born on 25 November 1929 at Taree, New South Wales, younger child of Victorian-born parents Neil Nicholson McPhee, travelling salesman, and his wife Ethel Elizabeth, née Hart, schoolteacher. In the mid-1930s the family moved to Geelong, Victoria, and Neil attended Manifold Heights State School and Geelong College (1940–46). In February 1947 he entered the Royal Military College, Duntroon, Australian Capital Territory, where he was noted for his strong personality and organising ability, establishing a choir and captaining the Australian Rules football team. Five feet eight inches (173 cm) tall, with a wiry, muscular physique, he also excelled as a boxer.

Commissioned in the Royal Australian Corps of Signals in December 1950, McPhee was granted leave during 1951 to study science at the University of Melbourne but he returned to the army the next year. Seeking overseas service in the Korean War, he was posted initially to the British Commonwealth Base Signals Regiment, Japan, in August 1952. In February 1953 he obtained a transfer to the 3rd Battalion, Royal Australian Regiment, as signals officer, and in April was promoted to temporary captain. The unit was engaged in hard-fought static operations, holding a sector of the line from May until the armistice in July. He was repatriated in July 1954 and posted as an instructor to the Officer Cadet School, Portsea. Confirmed in the rank of captain in December, he transferred to the Reserve of Officers in March 1955.

McPhee rarely spoke of his war service, although when a friend asked him the origins of his saying, ‘it gets cold up front’ (Hayne 2018, 19), he told of an action in which his unit had been exposed. Those who knew him surmised that responsibility for the lives of his men gave him the steely resolve needed for hard decisions in major legal actions. His interest in the law was aroused when he acted as ‘the soldier’s friend,’ advising defendants in courts martial. In 1955 he enrolled to study at the University of Melbourne (LLB, 1959), where he was awarded of the Supreme Court prize (1958) as top student in his year. While at university, he met Cosima Hilary Bayne (BA, 1959), whom he married in December 1960. They were to have three sons, Richard, Patrick, and Hugh.

After completing his articles, McPhee signed the Bar Roll in August 1960, reading with Richard Griffith. He quickly built up a large practice and took silk in 1971. Defying the strong trend towards specialisation, he always maintained a broad practice encompassing personal injuries, defamation, commercial law, constitutional cases, trade practices, patents, and more. He was best known for his work in media law, holding a long-standing retainer from John Fairfax & Sons Ltd and acting in many major defamation actions and media industry inquiries as well as in the litigation following Warwick Fairfax’s ill-fated attempt to take over the company in 1987.

Briefed in many of the significant royal commissions and government inquiries from the 1960s until his death, McPhee also acted in a remarkable number of major cases, representing clients in every jurisdiction up to the Privy Council. A regular punter, he acted frequently in racing cases, enjoying the intrigue and characters of the turf. He was also a keen supporter of the Richmond Football Club, advising both the club and the Victorian Football League, and playing a key role in modernising the league’s archaic restraint-of-trade provisions.

McPhee was widely regarded in legal circles as ‘the finest exponent of the art of legal advocacy, in all its forms, of his generation’ (Winneke 1998, 14). He had a complete mastery of legal principles, and an instinctive understanding of human behaviour, combined with an unremitting work ethic. His preparation for a trial was exhaustive, mastering every detail and planning for any eventuality. He believed in what he called the ‘Doctrine of the Ultimate Fact,’ that ‘each case had secreted within it one fact, the proof of which would be absolutely crucial, critical and decisive’ (Hedigan 1998, 16). A masterly tactician, he was equally at home in front of a jury or judge alone. In court, he spoke ‘very directly, saying just what he meant, and frequently in language that was highly colloquial’ (Hedigan 1998, 16).

Above all, McPhee was a brilliant cross-examiner. The former High Court judge Kenneth Hayne recalled: ‘To watch McPhee at work as a cross-examiner was wonderful. Because you would watch him treading on the eggshells to see what would bear the weight and then … there would be doors closed everywhere and then the trap would shut’ (Hayne 2018, 18). His nickname among colleagues at the Bar, ‘the Muttering Scot’ (Hedigan 1998, 17), came from his habit of talking to himself while practising addresses and cross-examinations.

McPhee refused all offers of judicial appointments, primarily because he preferred the excitement and camaraderie of the Bar to what he called ‘judicial atrophy’ (Winneke 1998, 14) on the bench. He was avowedly apolitical, although he briefly ventured into local politics, standing successfully for the Melbourne City Council in 1975 and contributing constructively as an independent for three years. Away from the law, he enjoyed racing, football, and especially sailing, owning a yacht moored at Townsville on which he used to disappear for weeks on end cruising along the Great Barrier Reef, often to the chagrin of instructing solicitors. In 1988 he was one of many prominent lawyers and businessman who invested in Bernborough Breeding and Racing Ltd, a tax-minimisation scheme that went into receivership in 1991 resulting in a high-profile court case. He was charming, witty, and full of fun, but his ‘intensely private disposition prevented many acquaintances from becoming friendships’ (Winneke 1998, 13).

In the late 1970s McPhee and his wife had separated, and they later divorced. From 1979 to 1987 he lived with the historian Jan Bassett. Subsequently his partner was the barrister Melanie Sloss, who cared for him in his final months. A heavy smoker, he was diagnosed with carcinoid cancer in 1995. Survived by his three sons, he died on 16 October 1998 and was cremated. A memorial service was held on 20 October in Scots’ Church, Melbourne. The Neil McPhee room at Owen Dixon Chambers, Melbourne, was named for him.