The Federal Court has found pro-Israel activist Ofir Birenbaum breached his Cairo Takeaway settlement deed. Stephanie Tran and Wendy Bacon report.
The Federal Court has found pro-Israel activist Ofir Birenbaum breached the confidential settlement that resolved his high-profile defamation dispute with Sydney restaurant Cairo Takeaway after he and his solicitor made public statements portraying the outcome as a victory.
In a judgment delivered on Tuesday, Justice Bromwich declared that Birenbaum breached the settlement deed by publishing statements on social media and by statements made on his behalf by his solicitor, Rebekah Giles.
The court also found Birenbaum breached the deed after Giles told Sky News that Cairo Takeaway had paid him compensation.
The parties entered a settlement deed on 26 March 2026 and issued a joint statement on 30 March.
Highly misleading
However, Justice Bromwich found that “the 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”.
The judge said that aspects of the public statements were “highly misleading and even deceptive” when compared with both the settlement deed and the agreed joint statement.
He found that the statements made by Birenbaum and Giles “in material ways misrepresent what has been agreed upon” in the settlement.
Stewart O’Connell, of O’Brien Criminal & Civil Solicitors, which acted for Cairo Takeaway, said the judgment “highlighted the importance of compromised settlements to the administration of justice”.
“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 said.
“Especially in circumstances where the ‘victory’ claimed was completely baseless. 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.”
Justice Bromwich said Birenbaum
“was not an impressive witness”.
“He would have had real difficulty in coping with protracted cross-examination, having a somewhat evasive and non-responsive manner. It was very much to his benefit that the trial is not proceeding such that cross-examination of that kind will not occur,” the judgment read.
The judge noted that if the case had gone to trial, “a competing characterisation … that Mr Birenbaum engaged in an act of unjustified provocation” would likely have been raised.
Wording up Sky News Australia
The court found Birenbaum and Giles had orchestrated a coordinated media strategy surrounding the settlement, providing briefing notes to Sky News journalists Sharri Markson and Caroline Marcus, as well as a number of right-wing commentators, before the publication of the agreed joint statement.
Justice Bromwich concluded the evidence supported the respondents’ submission that 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”.
“Ms Giles was closely involved in the conduct of the proceedings and the settlement process, including, as I have already inferred, the preparation of the Briefing Note and the preparation and publication of the Giles Statement and the Birenbaum Statement. She was not a bystander to the strategy to undermine and overwhelm the Joint Statement; she was a key implementer.”
He found the conduct of Birenbaum and Giles constituted “at the very least” a breach of parties’ duties under the Federal Court Act because it represented “a reasonably flagrant departure from the overarching purpose” of facilitating the just and efficient resolution of disputes.
In a statement, Cairo Takeaway owner Hesham El Masry said he was “relieved that the proceedings are finally over”.
“This whole court case has been a very difficult time for my family and I,” he said.
El Masry said he had agreed to compromise because he “did not want the fight to get out of hand” and hoped the agreed 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,” he said.
He said he was grateful for the judgment and looked forward to “getting back to normal life”.
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Stephanie is a journalist with a background in both law and journalism. She has worked at The Guardian and as a paralegal, where she assisted Crikey’s defence team in the high-profile defamation case brought by Lachlan Murdoch. Her reporting has been recognised nationally, earning her the 2021 Democracy’s Watchdogs Award for Student Investigative Reporting and a nomination for the 2021 Walkley Student Journalist of the Year Award.
Wendy Bacon is an investigative journalist who was the Professor of Journalism at UTS. She worked for Fairfax, Channel Nine and SBS and has published in The Guardian, New Matilda, City Hub and Overland. She has a long history in promoting independent and alternative journalism.
She is a long-term supporter of a peaceful BDS and the Greens.