s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - directions as to the conduct of the application - application by respondent under s.399A for dismissal of application on the basis that applicant unreasonably failed to comply with directions - uncontested evidence as to applicant's communications with the respondent - application granted and substantive application for unfair dismissal remedy dismissed - -costs

• [1] On 19 September 2025, on application by the respondent to these proceedings, I made directions which included the following:

1. The Applicant is directed to confine correspondence to the Respondent's solicitors to matters that are relevant to or which reasonably relate to or are necessary for the proper conduct of the proceeding.

2. Any communication by the Applicant in or in connection with the proceeding with any of the persons or to any of the email addresses listed in Annexure A to these directions is to be directed to the solicitor on the record for the Respondent, Ms. L Kyriacou of Pigott Stinson Solicitors.

• [2] The directions also included a requirement that the applicant, Mr. Kha, file any evidence and submissions in reply by 7 October 2025. The applicant's application for a remedy for his alleged unfair dismissal was listed for hearing on 9 October 2025.

• [3] On 7 October 2025, the respondent made an application that the proceedings be dismissed pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) on the ground that the applicant had unreasonably failed to comply with an order or direction of the Commission. The respondent also sought an order for costs against the applicant and asked that the substantive proceeding be adjourned pending determination of its application. On 8 October 2025 I advised the parties that I would not deal with the substantive application for an unfair dismissal remedy on 9 October 2025 but would instead determine the respondent's application as described above.

• [4] In support of its application, the respondent relied on a witness statement of Ms. Kyriacou. Ms. Kyriacou is the solicitor on the record for the respondent and has been granted permission to appear for the respondent in these proceedings.

• [5] The content of Ms. Kyriacou's statement was not contested. It demonstrates that from 30 September 2025 the applicant has sent numerous emails to Ms. Kyriacou's law firm and to the Commission purporting to serve evidence and submissions. Ms. Kyriacou deposed that in the period 30 September 2025 and 7 October 2025 she had received in excess of 205 emails from the applicant of which 157 were also issued to the Commission and 50 to recipients identified in Annexure A to the directions that were made on 19 September 2025. The emails provided by the respondent consist of more than 1800 pages. This is not a complete list of the emails as further emails were being sent by the applicant at the time of the preparation of Ms. Kyriacou's statement. Many of the emails contain statements and attachments that have little if any connection to the issues in dispute in the substantive proceedings. Many of them are threatening in nature. Much if not most of the content is nonsensical. It is unnecessary to reproduce the emails. A few examples will suffice.

• [6] In an email sent at 2:24 pm on 7 October 2025 to (among others) the respondent's CEO and his sons, and other of the respondent's staff, including two staff members who have provided statements for the respondent in these proceedings, the applicant embeds an image with the following text:

If you step against Me, you better finish the job. Because when I shoot, it's a double tap to the head. You won't crawl. You won't recover. You'll rot exactly where I left you. I don't play. I don't warn. I end.

There are no second chances when I move. No redemption arcs. No post-battle confessions. When I strike, it's not a fight - it's a funeral. So if you ever come for Me, make sure you never miss. Because I won't.

• [7] At 7:12 pm on 6 October 2025 the applicant sent an email to Ms. Kyriacou which includes the following:

(a) "The Lioness and the Lesson of the 500 Pages (Leonie's Contribution)";

(b) "Credit must also go to Leonie Kyriacou - our lioness of Greek origin - ";

(c) "And yes, I'll admit, the humour in it was irresistible HAHA Because when the tone is satirical - when the language dances between absurdity and genius - it FORCES the opposition to wade through hundreds of pages of NONSENSE just to confirm whether it's nonsense or prophecy. That's not harassment; that's psychological ENDURANCE testing.";

(d) "NO LAWYER enjoys reviewing 500 pages of chaotic satire, and NO NARCISSIST survives being OUT-REASONED by someone who WEAPONISED emojis, memes, and tone."

• [8] The applicant has also recently forwarded emails that were previously sent containing threats against the respondent's staff. The emails sent by the applicant include photographs of the respondent's venues and staff.

• [9] The applicant sent a further lengthy email as recently as 11.11pm on 8 October 2025 which included threatening and disturbing material. The email was directed to 4 employees of the respondent who were identified in Annexure A referred to in the directions of 19 September 2025. Two of those individuals have provided witness statements for the respondent in in the substantive proceeding in accordance with earlier directions.

• [10] At the time of the making of the directions of 19 September 2025 I explained to the applicant the reasons for the making of the directions and the potential consequences of breaching the directions. I referred to the provisions of the Act which allowed for orders dismissing an application of the kind that has been brought by Mr. Kha and the provisions relating to orders for costs. Mr. Kha indicated that he understood the directions and the possible consequences of any breach.

• [11] Having regard to the evidence I am satisfied that the applicant has engaged in conduct in breach of the directions made on 19 September 2025. Mr. Kha offered no explanation for his conduct. He did not challenge the evidence of the respondent or provide any evidence of his own. His conduct was in my view deliberate, vexatious and designed to cause the respondent and a number of its staff at the very least, inconvenience and distress. Mr. Kha's conduct was plainly unreasonable for the purposes of s.399A(1). I propose to grant the respondent's application to dismiss the proceeding which has been brought by the applicant. An order to that effect will accompany this decision.

• [12] The respondent's application for costs referred to ss.400A, 570(2) and 611 of the Act. The respondent clarified at the hearing that reliance was only placed on s.400A in support of the costs application. I do not propose to determine the application for costs at this stage. Should the respondent wish to press that application, they should advise my Chambers and the applicant in writing of their intention to do so within 14 days[1] and provide further evidence and submissions specifying the nature of the order/s sought.

By video using Microsoft Teams at 10:00am AEDT on Thursday, 9 October 2025.

[1] See s.402 of the Act.

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