A pro-Israel activist who claimed he was vindicated after a legal settlement with a Sydney Middle Eastern restaurant made “misleading and deceptive” comments, a federal court justice has said.
Justice Robert Bromwich said on Thursday he couldn’t think of a “single judge” who would believe the behaviour was acceptable, as the long-running feud between Cairo Takeaway, a popular restaurant in Newtown, and Ofir Birenbaum, was again before the court.
The case settled in March, but was reopened after the restaurant alleged Birenbaum had breached parts of the settlement the parties had agreed by claiming he was “completely vindicated”.
In February 2025 Birenbaum went to Cairo Takeaway, wearing a Star of David cap and necklace, with reporters from the Daily Telegraph. The operation, later revealed to have been dubbed “undercover Jew” internally by the newspaper, made international headlines after it backfired.
Sign up for the Breaking News Australia emailIn August, Birenbaum launched defamation proceedings against the restaurant’s owner Hesham El Masry and staff member Talaat Yehia for statements made in a series of social media posts. Birenbaum denied the version of events depicted in the posts, which the restaurant later deleted and apologised for before the defamation suit was launched.
The parties’ confidential settlement involved Cairo Takeaway, Birenbaum and the Daily Telegraph releasing a joint statement in which the Daily Telegraph apologised to Cairo Takeaway for “causing distress”. Cairo also apologised unreservedly to Birenbaum.
But just hours after the agreed joint statement was published, the dispute was reignited when Birenbaum posted an additional “personal statement” to his Instagram and X accounts. He posted the personal statement to the X account three hours before he posted the joint statement, the court heard on Thursday.
His lawyer, Rebekah Giles, also sent statements to media in which she labelled the settlement “an important win for Ofir Birenbaum and the Australian Jewish community”, the court heard.
Bromwich said of Birenbaum’s social media statement: “The kindest thing you can say about it is that in the context of the deed, it’s misleading and deceptive, and if you were bringing an action for misleading or deceptive conduct, you’d win it, hands down.”
He later said: “I can’t imagine a single judge in this court thinking this was an acceptable way to behave, irrespective of whether there’s a finding made about breach of the deed.
“If everyone was to conduct themselves like this, matters just wouldn’t settle.”
On Thursday, Matthew Richardson, who was acting on behalf of Cairo Takeaway, alleged the statements by Birenbaum and Giles were a “coordinated effort” to discredit the settlement and “control the narrative” in the media.
“My submission is the fact that there was a coordinated effort to discredit the settlement to treat the deed essentially as a joke,” Richardson told the court.
“These were victory statements, they were planned, they were intended to bury the joint statement in the news cycle, and they had that effect.”
Richardson said the agreed joint statement was meant to “communicate an amicable resolution with no winner” but Birenbaum “effectively trashed that joint statement and killed any benefit that it had”.
Birenbaum’s lawyer, Kieran Smark SC, denied the comments were inconsistent with the official joint statement. He also suggested Birenbaum was vindicated because the restaurant had made a public apology.
“If someone is sued for defamation and their response at whatever stage of the proceedings is to publicly apologise for what they’ve done – including accepting that what was said was false – it is a fair reflection of that, it’s an available reflection of that, it’s not inconsistent with this document to say: ‘In effect I regard that as a win,’” he said.
Richardson also alleged that on the balance of probabilities, either Birenbaum or Giles or both had sent information to the Sky News journalist Sharri Markson that led her to report that she understood compensation had been paid as part of the settlement.
Smark conceded the disclosure of information to Markson was a breach of the terms of the settlement but disputed it came from Birenbaum or Giles.
“Ms Markson has simply joined the dots between information that she’s had or learned from other sources, and there’s no evidence that it comes from, as it were, our camp,” Smark told the court.
Richardson read to the court a WhatsApp message which Birenbaum had sent to Markson on 30 March saying Giles “told me you’re covering today, confirming it’s not a face-to-face interview”.
The court heard that a “briefing note” about the case was also sent to Crikey and the Daily Mail.
Birenbaum told the court, while under questioning by Richardson, he didn’t know who sent the briefing note to Crikey and the Daily Mail and denied instructing his solicitor to prepare or send the briefing material.
Asked whether he was surprised by its existence, he said he wasn’t.
Bromwich has reserved his decision.
