Court Finds Israel Activist Breached Cairo Takeaway Settlement

The Federal Court has ruled that pro-Israel activist Ofir Birenbaum broke the confidential settlement that ended his defamation case against Sydney restaurant Cairo Takeaway. Justice Bromwich declared on Tuesday that Birenbaum breached the deed by posting on social media and through statements his solicitor, Rebekah Giles, made to Sky News.

The parties signed a settlement deed on March 26 and issued a joint statement four days later. Justice Bromwich found that the joint statement was "completely overwhelmed" by public comments from Birenbaum and Giles that "cast a very different complexion on the nature of the resolution of the proceeding."

The judge described aspects of those public statements as "highly misleading and even deceptive" when compared with the settlement deed and the agreed joint statement. He said the statements "in material ways misrepresent what has been agreed upon."

Justice Bromwich noted that if the case had gone to trial, a competing characterisation that Birenbaum "engaged in an act of unjustified provocation" would likely have been raised. The judge also said Birenbaum "would have had real difficulty in coping with protracted cross-examination, having a somewhat evasive and non-responsive manner."

The court found Birenbaum and Giles had orchestrated a coordinated media strategy around the settlement. They provided briefing notes to Sky News journalists Sharri Markson and Caroline Marcus, along with several right-wing commentators, before the joint statement was published.

Justice Bromwich concluded the evidence supported the argument 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," the judgment read. "She was not a bystander to the strategy to undermine and overwhelm the Joint Statement; she was a key implementer."

The judge found the conduct of Birenbaum and Giles constituted "at the very least" a breach of 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.

Giles had told Sky News that Cairo Takeaway paid Birenbaum compensation. Justice Bromwich found that statement also breached the settlement deed.

The case highlights the limits of confidential settlements when one party uses public statements to reframe the outcome. The joint statement was meant to close the matter. The court found Birenbaum and Giles opened it back up on their own terms.