A pro-Israel activist breached parts of a legal settlement with Sydney restaurant Cairo Takeaway when Ofir Birenbaum and his lawyer released “highly misleading and even deceptive” statements that implied they had won, a court has ruled.
Justice Robert Bromwich handed down his decision in the federal court on Tuesday after the Middle Eastern restaurant in Newtown alleged Birenbaum had breached part of a confidential settlement in a defamation suit.
Bromwich wrote that the settlement was “a true compromise”, which included requiring the parties to release a joint statement that conveyed “no party had won”.
However, Birenbaum and his lawyer, Rebekah Giles, released personal statements on the same day as the joint statement which painted “a similar picture of victory”, the judge said.
Sign up for the Breaking News Australia emailBromwich found that this breached the settlement because it “misrepresented” and was “inconsistent” with the joint statement.
“Those statements as reported upon were in a general sense highly misleading and even deceptive,” he wrote.
The judgment was the latest chapter in a long-running feud involving Birenbaum, who visited the popular Middle Eastern restaurant wearing a Star of David cap and necklace, with reporters from the Daily Telegraph in February 2025.
The operation, later revealed to have been dubbed “undercover Jew” internally by the newspaper, made international headlines after it backfired.
In August, Birenbaum launched defamation proceedings against the restaurant’s owner, Hesham El Masry, and staff member Talaat Yehia for statements made in a series of social media posts.
Birenbaum denied the version of events depicted in the posts, which the restaurant later deleted and apologised for before the defamation suit was launched.
The case reached a confidential settlement in March. It involved Cairo Takeaway, Birenbaum and the Daily Telegraph releasing a joint statement in which the Daily Telegraph apologised to Cairo Takeaway for “causing distress”. Cairo apologised unreservedly to Birenbaum.
“The joint statement reflected a sensible and mature outcome, by way of a genuine compromise, in the best interests of all concerned,” Bromwich wrote in his judgment on Tuesday.
However, that joint statement “was completely overwhelmed by public statements attributed to Mr Birenbaum and by Ms Giles, which cast a very different complexion on the nature of the resolution of the proceeding”.
“Mr Birenbaum, through his own conduct and via Ms Giles, deliberately set out, in a planned way, to undermine and overwhelm the contents and effect of the joint statement by publishing their statements first or at around the same time,” Bromwich wrote.
“Mr Birenbaum uses language such ‘the Truth wins’, asserts that he has been ‘completely vindicated’, and points to ‘lies’ being told about him that are the subject of an unreserved public apology. None of that is reflective of the content or tenor of the joint statement even upon the most cursory reading.”
The judge said that “the Giles statement paints a similar picture of victory”.
“It portrays the resolution as ‘an important win’ for Mr Birenbaum and a ‘vindication for Jews across the globe’ and suggests that ‘a lesser man would have cut his losses and walked away’.
“Her statement conveyed an unqualified victory in relation to the proceedings as a whole, which she must have known was not what the joint statement conveys.”
Bromwich found that the settlement had been in the best interest of both parties, saying there was a real “reputational harm” for both.
He said the reputational risk for Birenbaum if the case went to trial “could well have been greater” than the Instagram posts that he alleged were defamatory.
Briefing note sent to media
During the May hearing, the court heard that a briefing note had been sent to journalists at the Daily Mail and Crikey, which included details of the case as well as the joint statement and personal statements from Birenbaum and Giles.
Bromwich found that Giles, or someone on her behalf, sent that briefing note to the two journalists.
“My conclusion is also bolstered by the fact that it was not until after this document was produced in answer to the notice to produce that Ms Giles’s affidavit was not read and she was not otherwise called to give evidence,” Bromwich wrote.
“I draw the ordinary inference that she was not called because it would not have assisted her client’s case in general, and on this issue in particular.”
Sky News Australia also ran a news segment hosted by Sharri Markson, who reported that compensation had been paid to Birenbaum.
Bromwich found that information in the Sky News segment about compensation being paid was conveyed by Giles to Markson or another employee of Sky News on behalf of Birenbaum.
Stewart O’Connell, of O’Brien Criminal & Civil Solicitors, which represented Cairo Takeaway, said in a statement after the judgment: “It was unfortunate that all the hard work that went into achieving a compromise in this matter was undone by people who wanted to spin that compromise into some kind of victory.”
“We hope this judgment results in the avoidance of such conduct in the future and a greater respect for the importance of compromised and reasonable settlements,” O’Connell said.
El Masry, the owner of Cairo Takeaway, said in a statement he was “relieved that the proceedings are finally over”.
“This whole court case has been a very difficult time for my family and I. We had a very different view of things from Mr Birenbaum and his lawyers. But we agreed to compromise because we did not want the fight to get out of hand,” he said.
“We also thought that the joint statement would help restore some harmony in the community. We were bitterly disappointed that the other side did not show the same respect for that joint statement that we intended to.”
Birenbaum said in a statement following Tuesday’s ruling that “the resolution brokered between the parties remains on foot and I remain happy with its terms”.
Bromwich said that ordinarily costs would be awarded following judgment; however, both parties had asked to make submissions before a sum was determined.
Comment was being sought from Giles, News Corp Australia and Sky News Australia.
