The long-running case between Jewish man Ofir Birenbaum and Sydney restaurant Cairo Takeaway returns to federal court.
\nA pro-Israel activist who claimed he was vindicated after a legal settlement with a Sydney Middle Eastern restaurant made \u201cmisleading and deceptive\u201d comments, a federal court justice has said.
\nJustice Robert Bromwich said on Thursday he couldn\u2019t think of a \u201csingle judge\u201d 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.
\nThe 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 \u201ccompletely vindicated\u201d.
\nIn 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 \u201cundercover Jew\u201d internally by the newspaper, made international headlines after it backfired.
\nIn August, Birenbaum launched defamation proceedings against the restaurant\u2019s 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.
\nThe parties\u2019 confidential settlement involved Cairo Takeaway, Birenbaum and the Daily Telegraph releasing a joint statement in which the Daily Telegraph apologised to Cairo Takeaway for \u201ccausing distress\u201d. Cairo also apologised unreservedly to Birenbaum.
\nBut just hours after the agreed joint statement was published, the dispute was reignited when Birenbaum posted an additional \u201cpersonal statement\u201d 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.
\nHis lawyer, Rebekah Giles, also sent statements to media in which she labelled the settlement \u201can important win for Ofir Birenbaum and the Australian Jewish community\u201d, the court heard.
\nBromwich said of Birenbaum\u2019s social media statement: \u201cThe kindest thing you can say about it is that in the context of the deed, it\u2019s misleading and deceptive, and if you were bringing an action for misleading or deceptive conduct, you\u2019d win it, hands down.\u201d
\nHe later said: \u201cI can\u2019t imagine a single judge in this court thinking this was an acceptable way to behave, irrespective of whether there\u2019s a finding made about breach of the deed.
\n\u201cIf everyone was to conduct themselves like this, matters just wouldn\u2019t settle.\u201d
\nOn Thursday, Matthew Richardson, who was acting on behalf of Cairo Takeaway, alleged the statements by Birenbaum and Giles were a \u201ccoordinated effort\u201d to discredit the settlement and \u201ccontrol the narrative\u201d in the media.
\n\u201cMy submission is the fact that there was a coordinated effort to discredit the settlement to treat the deed essentially as a joke,\u201d Richardson told the court.
\n\u201cThese were victory statements, they were planned, they were intended to bury the joint statement in the news cycle, and they had that effect.\u201d
\nRichardson said the agreed joint statement was meant to \u201ccommunicate an amicable resolution with no winner\u201d but Birenbaum \u201ceffectively trashed that joint statement and killed any benefit that it had\u201d.
\nBirenbaum\u2019s 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.
\n\u201cIf someone is sued for defamation and their response at whatever stage of the proceedings is to publicly apologise for what they\u2019ve done \u2013 including accepting that what was said was false \u2013 it is a fair reflection of that, it\u2019s an available reflection of that, it\u2019s not inconsistent with this document to say: \u2018In effect I regard that as a win,\u2019\u201d he said.
\nRichardson 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.
\nSmark conceded the disclosure of information to Markson was a breach of the terms of the settlement but disputed it came from Birenbaum or Giles.
\n\u201cMs Markson has simply joined the dots between information that she\u2019s had or learned from other sources, and there\u2019s no evidence that it comes from, as it were, our camp,\u201d Smark told the court.
\nRichardson read to the court a WhatsApp message which Birenbaum had sent to Markson on 30 March saying Giles \u201ctold me you\u2019re covering today, confirming it\u2019s not a face-to-face interview\u201d.
\nThe court heard that a \u201cbriefing note\u201d about the case was also sent to Crikey and the Daily Mail.
\nBirenbaum told the court, while under questioning by Richardson, he didn\u2019t know who sent the briefing note to Crikey and the Daily Mail and denied instructing his solicitor to prepare or send the briefing material.
\nAsked whether he was surprised by its existence, he said he wasn\u2019t.
\nBromwich has reserved his decision.<\/p>\n","protected":false},"excerpt":{"rendered":"
The long-running case between Jewish man Ofir Birenbaum and Sydney restaurant Cairo Takeaway returns to federal court. A pro-Israel activist who claimed he was vindicated after a legal settlement with a Sydney Middle Eastern restaurant made \u201cmisleading and deceptive\u201d comments, a federal court justice has said. Justice Robert Bromwich said on Thursday he couldn\u2019t think […]<\/p>\n","protected":false},"author":2,"featured_media":29966,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[33],"tags":[],"class_list":["post-29965","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-middle-east-news"],"_links":{"self":[{"href":"https:\/\/fajr.news\/index.php?rest_route=\/wp\/v2\/posts\/29965","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fajr.news\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fajr.news\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fajr.news\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fajr.news\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=29965"}],"version-history":[{"count":0,"href":"https:\/\/fajr.news\/index.php?rest_route=\/wp\/v2\/posts\/29965\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/fajr.news\/index.php?rest_route=\/wp\/v2\/media\/29966"}],"wp:attachment":[{"href":"https:\/\/fajr.news\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=29965"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fajr.news\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=29965"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fajr.news\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=29965"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}