The Federal Court of Australia has ruled that pro-Israel activist Ofir Birenbaum breached parts of a confidential legal settlement with Sydney restaurant Cairo Takeaway by releasing statements that painted a misleading picture of victory. Justice Robert Bromwich delivered the decision on Tuesday, finding that Birenbaum and his lawyer, Rebekah Giles, undermined a joint statement that was part of the settlement by issuing their own statements that implied they had won the case.
Background of the Dispute
The case stems from an incident in February 2025 when Birenbaum visited Cairo Takeaway in Newtown wearing a Star of David cap and necklace, accompanied by reporters from the Daily Telegraph. The operation, internally dubbed 'undercover Jew' by the newspaper, made international headlines after it backfired. In August 2025, Birenbaum launched defamation proceedings against the restaurant's owner, Hesham El Masry, and staff member Talaat Yehia over social media posts that were later deleted and apologized for.
The case reached a confidential settlement in March 2025, which included a joint statement from Cairo Takeaway, Birenbaum, and the Daily Telegraph. In the joint statement, the Daily Telegraph apologized to Cairo Takeaway for causing distress, and Cairo Takeaway apologized unreservedly to Birenbaum. Justice Bromwich described the joint statement as reflecting 'a sensible and mature outcome, by way of a genuine compromise, in the best interests of all concerned.'
Breach of Settlement
However, on the same day the joint statement was released, Birenbaum and Giles issued their own statements that Justice Bromwich found were 'highly misleading and even deceptive.' Birenbaum's statement used language such as 'the Truth wins,' asserted he had been 'completely vindicated,' and pointed to 'lies' being told about him. Giles' statement portrayed the resolution as 'an important win' for Birenbaum and a 'vindication for Jews across the globe,' suggesting that 'a lesser man would have cut his losses and walked away.'
Justice Bromwich wrote that these statements 'cast a very different complexion on the nature of the resolution of the proceeding' and 'completely overwhelmed' the joint statement. He found that Birenbaum and 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.'
Briefing Note and Media Coverage
During the May hearing, it emerged that a briefing note containing details of the case, the joint statement, and the personal statements had been sent to journalists at the Daily Mail and Crikey. Justice Bromwich concluded that Giles, or someone on her behalf, sent that note. He also found that information about compensation being paid to Birenbaum was conveyed by Giles to Sky News Australia, which ran a segment hosted by Sharri Markson reporting that compensation had been paid.
Justice Bromwich noted that Giles was not called to give evidence, drawing 'the ordinary inference that she was not called because it would not have assisted her client's case.'
Reactions to the Judgment
Stewart O'Connell, of O'Brien Criminal & Civil Solicitors, which represented Cairo Takeaway, said: '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.' He expressed hope that the judgment would result in 'greater respect for the importance of compromised and reasonable settlements.'
Hesham El Masry, owner of Cairo Takeaway, said he was 'relieved that the proceedings are finally over.' He added: '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. 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 after the ruling that 'the resolution brokered between the parties remains on foot and I remain happy with its terms.'
Next Steps
Justice Bromwich indicated that costs would ordinarily be awarded following judgment, but both parties have been asked to make submissions before a sum is determined. Comment was being sought from Giles, News Corp Australia, and Sky News Australia.
