A federal court ruled on Tuesday that pro-Israel activist Ofir Birenbaum and his lawyer, Rebekah Giles, breached a legal settlement with Sydney restaurant Cairo Takeaway. Justice Robert Bromwich found that Birenbaum released “highly misleading and even deceptive” statements that falsely characterized a mutual compromise as a personal victory.
Why was the settlement considered breached?
Justice Bromwich ruled that the personal statements released by Birenbaum and Giles were “inconsistent” with the confidential settlement reached in March. While the settlement required a joint statement conveying that “no party had won,” the individual statements painted a “picture of victory,” according to the judge.
The court found that Birenbaum used language such as “the Truth wins” and claimed he had been “completely vindicated.” Justice Bromwich noted these claims did not reflect the actual content or tenor of the joint agreement.
The judge also found that lawyer Rebekah Giles’s statement portrayed the resolution as an “important win” and a “vindication for Jews across the globe.” Bromwich stated that Giles’s comments suggested an unqualified victory that she “must have known” was not what the joint statement conveyed.
What led to the original defamation suit?
The legal conflict began after Birenbaum visited Cairo Takeaway in Newtown wearing a Star of David cap and necklace. Following this visit, Birenbaum launched defamation proceedings in August against the restaurant’s owner, Hesham El Masry, and staff member Talaat Yehia.
The suit concerned statements made in a series of social media posts. Although the restaurant later deleted the posts and apologized before the suit was launched, Birenbaum denied the version of events depicted in them.
The case reached a confidential settlement in March. This agreement included a joint statement where the Daily Telegraph apologized to Cairo Takeaway for “causing distress,” while Cairo Takeaway apologized unreservedly to Birenbaum.
How were the misleading statements shared?
The court heard that a briefing note containing details of the case and the personal statements was sent to journalists at the Daily Mail and Crikey. Justice Bromwich found that Giles, or someone acting on her behalf, sent the document.
Additionally, Sky News Australia aired a segment where host Sharri Markson reported that compensation had been paid to Birenbaum. The judge found that this information was conveyed to Markson or another Sky News employee by Giles or someone on Birenbaum’s behalf.
What have the parties involved said?
Stewart O’Connell, representing Cairo Takeaway, stated that the compromise was “undone by people who wanted to spin that compromise into some kind of victory.” He expressed hope that the judgment would encourage greater respect for reasonable settlements in the future.
Cairo Takeaway owner Hesham El Masry said he felt “relieved that the proceedings are finally over.” El Masry noted that the family had agreed to the compromise to prevent the conflict from escalating and had hoped the joint statement would “restore some harmony in the community.”
The judgment suggests that the legal proceedings may have concluded the active dispute, though Birenbaum, Giles, News Corp Australia, and Sky News Australia were sought for comment.
Frequently Asked Questions
What was the purpose of the joint statement in the original settlement?
The joint statement was intended to reflect a “sensible and mature outcome” and a “genuine compromise” where no single party was declared the winner.
What specific language did the judge criticize in Birenbaum’s statements?
Justice Bromwich cited phrases such as “the Truth wins” and claims of being “completely vindicated” as being inconsistent with the settlement.
What did the judge say regarding the reputational risks for both parties?
The judge found there was “reputational harm” for both sides and noted that the risk to Birenbaum if the case had gone to trial “could well have been greater” than the original posts.
How should the legal system balance individual freedom of speech with the requirements of confidential settlement agreements?
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