Sue has a uniquely broad practice, spanning most areas of criminal and civil law, where she is often briefed to handle complex issues of evidence and privilege. Sue is considered Australia’s foremost authority on the law of privilege. She now mainly appears in public interest immunity, privilege, search warrant and subpoena cases and areas with a special focus on criminal, corporations and administrative law. She also regularly acts as an arbitrator in investigations into public and private companies where disputes about privilege have arisen.
Before coming to the Bar, Sue was an Associate Professor at Monash University’s Law Faculty (1993 to 2002) and held a variety of academic positions (including Associate Dean of (Teaching) and Associate Dean (Research)). While at Monash, she won the Vice-Chancellor’s Excellence Award for Distinguished Teaching and wrote The Law of Privilege (Thomson Law Book Co, 501 pages), Australia’s preeminent text on that topic. Sue co-authored Evidence (Butterworths 2005, now in its third edition) with Deborah Mortimer (now Justice Mortimer) which includes an analysis and evaluation of the rules of evidence in Australia. Sue also published over 20 articles, most of which appeared in refereed journals.
Sue is currently appearing in the Federal Court of Australia as Senior Counsel for the Federal Commissioner of Taxation in litigation concerning the validity of claims for legal professional privilege by a large multi-disciplinary practice and its corporate client. Late in 2020, she appeared as Senior Counsel for the Minister for Police and Emergency Services in the Hotel Quarantine Inquiry.
Sue appeared in the High Court of Australia as Senior Counsel for the Director of Public Prosecutions (DPP Victoria) in AB v CD; EF v CD  HCA 58. This case concerned a criminal barrister (“Lawyer X”) who was also deployed as a registered police informer, which gave rise to novel questions of public interest immunity, the rule of law, fair trials and equity. Dr McNicol led the DPP (Victoria) to successful outcomes before the Supreme Court (including cross-examining Lawyer X), the Court of Appeal (Vic) and the High Court over a four-year period. See, AB v CD; EF v CD  HCA 58, AB v CD and EF  VSCA 338, AB & EF v CD  VSC 350 and EF v CD  VSC 351.
Sue acted for the Australian Sports Anti-doping Authority (ASADA), the successful party in the Federal Court litigation brought by the Essendon Football Club and its former Senior Coach, James Hird, in relation to the so-called “supplements scandal”. Among other things, Sue was tasked with the job of cross-examining Mr Hird. See, Hird v CEO of ASADA  FCAFC 7; Essendon Football Club v CEO of ASADA  FCA 1019; 227 FCR 1.
Earlier in her career, Sue was briefed as junior counsel to appear for the Department of Justice in the Freedom of Information litigation brought by Heather Osland to access the legal advice which underpinned the Executive’s refusal to exercise the Royal Prerogative of Mercy in favour of Ms Osland. This case made its way to the High Court on at least two substantive occasions. See Osland v Secretary to Department of Justice (2008) 234 CLR 275 and Osland v Secretary to Department of Justice (No 2) (2010) 241 CLR 320.
For more cases in which Sue has appeared and information about Sue’s career, see Sue’s profile on the List A website.