Federal Court Rules Pro-Israel Activist Breached Settlement with Sydney Restaurant
"No party had won," the settlement's joint statement was required to convey.
Justice Robert Bromwich has ruled that pro-Israel activist Ofir Birenbaum breached the terms of a confidential settlement with Sydney restaurant Cairo Takeaway by issuing public statements that misrepresented the outcome of defamation proceedings. The judge reserved his decision on costs, which will be determined after further submissions.
Background of the Dispute
The controversy began in February 2025 when Birenbaum visited Cairo Takeaway wearing a Star of David cap and necklace, accompanied by reporters from the Daily Telegraph. The newspaper internally referred to the operation as "undercover Jew." The incident drew international attention.
In August 2025, Birenbaum sued the restaurant's owner, Hesham El Masry, and staff member Talaat Yehia for defamation over social media posts. The posts were later deleted, and an apology was issued.
Settlement and Joint Statement
The case was settled confidentially in March 2026. The settlement terms included a joint apology statement from Birenbaum, Cairo Takeaway, and the Daily Telegraph.
The joint statement was required to convey, according to Justice Bromwich, that "no party had won." The settlement included an apology from the Daily Telegraph to Cairo Takeaway and an unreserved apology from Cairo Takeaway to Birenbaum.
Breach of Settlement
Justice Bromwich found that Birenbaum and his lawyer, Rebekah Giles, breached the settlement by issuing personal statements that misrepresented the outcome.
Personal Statements
Hours after the joint statement was released, Birenbaum posted an additional personal statement on social media claiming vindication. Giles also sent media statements describing the settlement as "an important win for Ofir Birenbaum and the Australian Jewish community."
Judicial Findings
Justice Bromwich described Birenbaum's statements as "highly misleading and even deceptive." The judge noted that Birenbaum's statements used language such as "the Truth wins" and "completely vindicated," which were inconsistent with the joint statement's message of no party prevailing.
"The statements deliberately undermined the joint statement by being published first or simultaneously," the judge found.
Giles's statement characterized the resolution as a "vindication for Jews across the globe."
Additional Allegations
Media Leaks
Stewart O'Connell, lawyer for Cairo Takeaway, alleged that Birenbaum or Giles leaked information about compensation to Sky News journalist Sharri Markson, constituting a breach of the settlement's confidentiality terms. Kieran Smark SC, for Birenbaum, conceded the leak was a breach but denied it came from Birenbaum or Giles.
Justice Bromwich found that compensation information was conveyed to Sky News by Giles.
Briefing Note
A briefing note containing the personal statements was sent to journalists at Daily Mail and Crikey. The judge found this was likely sent by Giles or on her behalf. Birenbaum denied involvement in sending the note.
WhatsApp Message
A message from Birenbaum to Markson regarding the story was presented in court.
Responses
Cairo Takeaway's Position
O'Connell expressed disappointment that the compromise was undermined. El Masry stated he was relieved the proceedings were over and disappointed that the other side did not respect the joint statement.
Birenbaum's Position
Birenbaum stated that the resolution remains in place and he is happy with its terms. His lawyer, Smark, argued that Birenbaum was vindicated by the restaurant's public apology.
Legal Proceedings
Matthew Richardson, representing Cairo Takeaway, alleged that Birenbaum and Giles coordinated to discredit the settlement and control the narrative, calling it a "coordinated effort." Richardson argued that the personal statements were intended to undermine the joint statement's message of amicable resolution.
Smark denied the statements were inconsistent with the joint statement. Justice Bromwich reserved his decision on whether Birenbaum breached the settlement, later ruling that a breach had occurred.
The judge described Birenbaum's statements as "highly misleading and even deceptive" and inconsistent with the settlement's message that no party had prevailed.