Federal Court of Australia

Blue Dragon Pty Ltd v Huang [2026] FCA 1035

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s interlocutory application dated 27 May 2026 be dismissed.

2.    The applicant’s amended interlocutory application dated 12 June 2026 be dismissed.

3.    The applicant and first respondent bear their own costs of the two interlocutory applications.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    The applicant (Blue Dragon) operates a construction business in Sydney. The first respondent (Mr Huang) was employed by Blue Dragon for about 10 years from 2015 to 9 May 2025, during which period Mr Huang was Blue Dragon’s only employee. After leaving Blue Dragon, Mr Huang was employed by the second respondent (YC) which also operates a construction business in Sydney.

2    Mr Huang’s duties for Blue Dragon included preparing tenders and quotes, negotiating with suppliers, reviewing proposed contracts and assisting in the management of Blue Dragon’s construction projects. In carrying out work for Blue Dragon, Mr Huang used his own mobile phone and laptop computer.

3    Blue Dragon alleges that Mr Huang was an officer of Blue Dragon and breached his duties under ss 180 and 181 of the Corporations Act 2001 (Cth) (the Act) as well as his contractual and fiduciary duties, in not complying with Blue Dragon’s direction on 8 May 2025 to return all of Blue Dragon’s records that were stored on his laptop. Blue Dragon also alleges that Mr Huang breached his duties under ss 182 and 183 of the Act, as well as his contractual and fiduciary duties, by misusing Blue Dragon’s confidential information and diverting at least one business opportunity to YC, namely a tender on 15 May 2024. Blue Dragon alleges that YC was knowingly involved in the contraventions of ss 182 and 183 in the diversion of the business opportunity, and also that it is liable to account for any profits received from that work.

4    On 10 October 2025, at the commencement of the proceedings, Abraham J made orders ex parte which relevantly:

(a)    restrained Mr Huang from disclosing, altering, destroying, erasing, parting with, using or copying any documents in his possession which were created or received by him for the purposes of Blue Dragon’s business during the period 1 October 2015 to 9 May 2025;

(b)    required Mr Huang to serve an affidavit identifying the documents falling within that description which were still in his possession, and if they were not, what became of them; and

(c)    required Mr Huang to produce copies of all documents falling within that description.

5    On 7 November 2025, Mr Huang filed an affidavit, and between 7 and 13 November 2025 produced documents in his possession which were required by the orders.

6    By interlocutory application dated 27 May 2026, Mr Huang seeks to have set aside or varied the ex parte orders of 10 October 2025 on the basis of material non-disclosure in obtaining those orders. By amended interlocutory application dated 12 June 2026, Blue Dragon seeks orders under r 14.01 of the Federal Court Rules 2011 (Cth) for Mr Huang to deliver up his personal laptop and mobile phone that he used during his employment with Blue Dragon for forensic imaging by an independent information technology expert, together with ancillary orders. As Blue Dragon relies in part on the continued operation of the orders of 10 October 2025 in its application, it is logical to deal first with Mr Huang’s application to have those orders set aside or varied.

7    Mr Huang’s application is based on seven alleged non-disclosures or misleading disclosures:

(a)    Failure to disclose the directions to Mr Huang to delete emails during his employment. As to that matter, Mr Lin, the sole director of Blue Dragon, was not aware of such directions and I am not satisfied that the circumstances required him to make inquiries of Blue Dragon’s information technology consultant, Mr Lee, as to whether any such directions were given. Further, I note that there is a factual dispute between Mr Huang and Mr Lee as to the scope of those directions, and in particular whether the directions went beyond referring to “unused” emails, and whether the nature of the direction was that Mr Huang was to move emails to a local folder and then empty the trash bin. If Mr Huang’s evidence is not accepted, then I do not regard the matter as material even if (contrary to my view) Mr Lin was required to make inquiries of Mr Lee on the matter.

(b)    Failure to disclose the use by Mr Huang of his personal email address for Blue Dragon’s business purposes before December 2024. This is also a matter in dispute.

(c)    Failure to disclose that Blue Dragon still retained access to a large quantity of Mr Huang’s work emails. However, it was disclosed in the submissions and evidence before the Court on 10 October 2025 that Blue Dragon could access Mr Huang’s Blue Dragon email account, and I do not regard any further disclosure as material.

(d)    Failure to disclose a lack of any request for documents after Mr Huang’s employment ended, and that Mr Huang had cooperated both before and after he left. However, there is a dispute as to whether Mr Huang’s cooperation was complete, and Blue Dragon says that it refrained from making further requests for fear of prompting deletions of documents, which is a common feature of ex parte applications of this kind.

(e)    Failure to disclose that Mr Lin and Blue Dragon each owed substantial sums to Mr Huang as at 10 October 2025. However, disclosure was made of substantial amounts owing by Mr Lin and Blue Dragon to Mr Huang, and I do not see how any further disclosure would have been material to the orders sought on 10 October 2025.

(f)    Failure to disclose that Blue Dragon regularly provided quotations for work that it did not win, and to disclose the extent to which Blue Dragon had investigated who ultimately won the work in question. However, the first proposition is an obvious characteristic of construction companies, and I do not regard the second proposition as material.

(g)    A misleading disclosure regarding Mr Lin’s awareness of Mr Huang’s use of the title “director”. However, Mr Lin disputes having had that knowledge.

8    Mr Huang’s application thus depends to a substantial extent on matters which are disputed between the parties. It is not appropriate to seek to resolve those factual disputes on this application, rather than at the final hearing. In my view, Mr Huang has not established either that the alleged non-disclosures or misleading disclosures are based on facts that were beyond bona fide contest, or that they were material to the orders sought on 10 October 2025.

9    It is also relevant to note that the orders made on 10 October 2025 in relation to the safeguarding and production of documents (except for the order for an affidavit) are largely reflective of ordinary aspects of an employee’s duty, rather than imposing onerous restrictions on the freedom which a former employee would otherwise enjoy.

10    In any event, Mr Huang has brought this application more than seven months after the orders were made, in circumstances where he has been legally represented since at least 29 October 2025. On 29 October 2025, and again on 18 November 2025, Mr Huang consented to orders extending the time for compliance with the orders of 10 October 2025. Mr Huang seeks to explain the delay on the basis that his former lawyers did not inform him that he could apply to set aside the orders. But Mr Huang’s current lawyers were engaged in January 2026, which leaves four or five months’ delay unexplained. Even if there were material non-disclosures as at 10 October 2025 (contrary to the findings I have made above), I regard that delay as fatal to this application.

11    I note that Mr Huang has expressly stated that (even if successful on this application) he does not seek the return of documents already delivered up.

12    As to the proposed variations to the order, Mr Huang submits that he should not have to deliver up emails to which Blue Dragon already has access, or documents created or received by Mr Huang before 1 January 2022, being about three and a half years before the end of his employment. I note that Blue Dragon is no longer pressing for production of emails in Mr Huang’s Blue Dragon inbox account to which they already have access. Whether or not the proposed limitations to the orders of 10 October 2025 would have been sensible limitations to have been proposed when the orders were made, or shortly thereafter, I consider it too late now for Mr Huang to seek such variations.

13    For those reasons, I dismiss Mr Huang’s interlocutory application.

14    Turning then to Blue Dragon’s application for delivery up of Mr Huang’s devices, r 14.01 extends to inspection of a computer and mobile phone: AEI Insurance Group Pty Ltd v Martin (No 2) [2023] FCA 277 at [23]. In that case, Thawley J listed some of the relevant factors (at [24]) as including whether the evidence demonstrates that the order is necessary or desirable, the utility of the order in terms of advancing the resolution or determination of the proceedings, the extent of inspection to be allowed, and what measures should be adopted for the proper protection of the interests of the party subject to the order.

15    The amended interlocutory application makes clear that, upon the delivery up which is sought of Mr Huang’s devices, the forensic imaging by the proposed independent information technology expert is to be limited to recording the files and programs contained on and deleted from the devices, including the name of the files, the date of creation, the date of deletion (if applicable), and the date of extraction or duplication (if applicable). The proposed order expressly does not extend to reviewing, extracting or copying the files or programs themselves. The expert nominated by Blue Dragon, Mr McKemmish, anticipates being able to complete the imaging of the mobile phone within 24 hours and the laptop within 72 hours. Although that would occasion significant inconvenience to Mr Huang, who uses those devices for his personal purposes, I would not regard that inconvenience as an insuperable obstacle if the orders should otherwise be made.

16    The reason advanced by Blue Dragon for the orders is to test the veracity of Mr Huang’s production in response to the orders of 10 October 2025. Blue Dragon submits that there is evidence which casts doubt over the veracity of Mr Huang’s affidavit of 7 November 2025 and his production in response to the orders. In particular, Blue Dragon relies on its discovery in April 2026 that on 27 October 2025 Mr Huang issued a quotation to a customer on behalf of YC using Blue Dragon’s quotation template. Blue Dragon contends that that breached the injunction of 10 October 2025 against the use of Blue Dragon’s documents, which defined the term “documents” as including “templates”.

17    Blue Dragon believes that the number of emails produced (averaging one per day over his decade of employment) suggests there may have been emails deleted, especially in the period before 2019. I have referred above to the dispute as to whether or not Mr Huang was directed to delete emails generally, which I am unable to resolve at this stage. In addition, Mr Huang has openly stated through his solicitors that he did not produce emails sent to or from his Blue Dragon email address which Blue Dragon already had access to.

18    Mr Lin says in his affidavit of 1 May 2026 at [13]–[14] that he believes that Mr Huang has failed to comply with the orders of 10 October 2025, but if he has produced everything in his possession then he believes that Mr Huang has deleted from his laptop and mobile phone evidence that is relevant to the issues in dispute. Mr Lin says that those devices need to be examined so that Blue Dragon can assess whether Mr Huang is in contempt for failing to comply with the orders and/or deleting evidence. Mr Lin also says that the examination of the devices is relevant to Mr Huang’s credit.

19    Blue Dragon also submits that the evidence gives rise to an inference that Mr Huang is intervening with third parties, and encouraging them not to provide any documents to Blue Dragon, which may be relevant to these proceedings. An instance of that suspicion relates to Blue Dragon’s unsuccessful attempts to obtain documents from personnel at Viva Projects Pty Ltd.

20    Mr Huang submits that it is not apparent how Mr McKemmish could produce a report to Blue Dragon of any real utility without being able to review the contents of documents on Mr Huang’s devices. Mr Huang points out that the orders of 10 October 2025 were concerned with documents pertaining to Blue Dragon’s business, but those documents cannot realistically be separated out from other documents (such as those pertaining to Mr Huang’s personal affairs) without reading them. Blue Dragon responds by submitting that the file names identified by Mr McKemmish’s process may indicate documents which pertain to Blue Dragon’s business, and may indicate that they have been deleted. I accept that that is a realistic possibility. However, I note that Blue Dragon submits that the revelation of such circumstances would not be an end-point, but a springboard to further investigations and processes, including the issuing of subpoenas.

21    Blue Dragon has candidly stated that it seeks these orders in an attempt to establish a contempt of the Court’s orders by Mr Huang. Mr Huang submits, and I accept, that Mr Huang is entitled to resist an order for production of his devices (which contain many documents) on the ground of the privilege against self-incrimination or self-exposure to penalty, even if the hypothesised allegation of contempt is in the nature of a civil proceeding for criminal contempt: see Kostov v YPOL Pty Ltd [2018] NSWCA 306; (2018) 98 NSWLR 1002 at [18] (Beazley P, Meagher JA and Simpson AJA). Mr Huang also relies on Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 at [2], in which the High Court said that if the appellant were a natural person, production of documents pursuant to an order for discovery might be resisted as offending the privilege against self-incrimination with the result that an order for discovery would be refused.

22    Blue Dragon relies on the decision of the New South Wales Court of Appeal in Sader v Elgammal [2024] NSWCA 20; (2024) 113 NSWLR 394. In that case, the New South Wales Court of Appeal held that the privilege against self-exposure to penalty was not engaged in relation to an order to inspect property: see [71]–[86] (Ward P, with whom Meagher JA and Simpson AJA agreed). The Court of Appeal followed the decision in Baldwin v State of New South Wales [2020] NSWCA 112; (2020) 102 NSWLR 447. In that case, Basten JA (with whom Macfarlan JA and Emmett AJA agreed) distinguished (at [30]) between orders requiring a person to allow access to premises or consent to a search, on the one hand, from orders which require a person to produce documents or things or otherwise assist in identifying possibly incriminating material for the searchers, on the other hand. The privilege against self-incrimination or self-exposure to penalty is not engaged by the former, but is engaged by the latter. In my view, the orders which are sought by Blue Dragon fall into the latter category. They would require Mr Huang to deliver up his laptop and mobile phone, which necessarily involves delivery up of the documents stored in those devices. That is, those orders would require Mr Huang to produce documents or things or otherwise assist in identifying possibly incriminating material for review by Mr McKemmish, who will then be required to produce a report to Blue Dragon. As Mr Huang has signalled an intention to claim the privilege against self-incrimination or self-exposure to penalty, and that privilege would be available to Mr Huang, I do not see any utility in making the order.

23    Blue Dragon also submits that Mr Huang has waived the privilege, referring to the evidence contained in Mr Huang’s affidavit of 27 May 2026 at [93] and [101]–[109]. That evidence concerned two particular topics, namely advice he received from his former lawyers that he did not need to produce documents that had been sent to or from a Blue Dragon email address in circumstances where he understood that Blue Dragon already had access to those documents, and Mr Huang’s use of standard quotation templates. I do not regard that very limited evidence as being inconsistent with maintaining privilege over material which has not yet been disclosed. I therefore reject the submission as to waiver.

24    I note also that para 3 of the amended interlocutory application seeks an order that Mr Huang serve an affidavit stating whether any documents were altered, destroyed, erased, parted with or otherwise made unavailable for use in these proceedings from his devices, and to identify any such documents and explain their contents, and whether any documents were used or copied and if so to identify each such document and explain how it was used or copied and to whom it was issued. Blue Dragon accepts that, subject to its submission as to waiver, that order would be inconsistent with the privilege against self-incrimination or self-exposure to penalty. I accept that concession, and as I have rejected the argument based on waiver, there is no need to consider Mr Huang’s further submissions as to whether the order should be rejected on grounds of oppression.

25    For those reasons, I dismiss Blue Dragon’s amended interlocutory application. I note, as Mr Huang submits, that Blue Dragon still has the usual entitlement to seek discovery and to issue subpoenas. Those procedures will provide Blue Dragon with the ability of actually reading the contents of the documents which are produced, that being an aspect which Blue Dragon had expressly disclaimed in this application.

26    As to costs, the parties have each failed in obtaining the interlocutory relief which they sought. The evidence for the two applications overlapped to a substantial extent, and the costs involved in the two applications appear to me to have been roughly equal. In those circumstances, I order that each party bears its own costs of the two interlocutory applications.

Associate:

Dated:    29 July 2026