Federal Court of Australia

Birenbaum v H & A Nominees Pty Ltd trading as Cairo Takeaway (breach of settlement deed) [2026] FCA 839

ORDERS

IN THE ORDERS SET OUT BELOW:

The Intervening Party refers to Nationwide News Pty Ltd.

THE COURT DECLARES THAT:

1.    The applicant, Ofir Birenbaum, breached clause 18 of the Deed of Settlement executed on 26 March 2026 by publishing and thereby making and/or Rebekah Giles, acting on his behalf and within the scope of her retainer, publishing and thereby making:

(a)    a written statement by Ms Giles on 30 March 2026, which appears at page 6 of the affidavit of Stewart O’Connell affirmed 16 April 2026 in support of the interlocutory application dated 16 April 2026 (O’Connell Affidavit), the text of which is reproduced at Annexure C to the judgment.

(b)    his own written statement on 30 March 2026, which appears at page 7 of the O’Connell Affidavit, the text of which is reproduced at Annexure B to the judgment.

(c)    his own statement on 30 March 2026 on his Instagram account @ofirfromisrael which appears at pages 8-13 of the O’Connell Affidavit, the text of which is reproduced in substance at Annexure B to the judgment.

(d)    his own statement on 30 March 2026 with a title “The Truth Wins” on his X account @ofirfromisrael which appears at pages 14-16 of the O’Connell Affidavit, the text of which is reproduced in substance at Annexure B to the judgment.

2.    Ofir Birenbaum breached clause 18 of the Deed by Rebekah Giles, acting on his behalf and within the scope of her retainer, communicating to Sharri Markson and/or an employee or agent of Sky News that Cairo Takeaway paid an amount of compensation to Ofir Birenbaum.

THE COURT ORDERS THAT:

3.    Any party that wishes to make any application for costs do so by an email to the chambers of Justice Bromwich, copied to the other parties, by no later than 4.00 pm on 10 July 2026.

4.    The parties confer and propose an agreed timetable, or alternatively competing timetables, for evidence and submissions of no longer than 3 pages in relation to any application for costs made in accordance with the immediately preceding order, such timetable to conclude by no later than 4.00 pm on 24 July 2026.

5.    The question of costs be determined on the papers unless the Court decides to hear from the parties.

6.    The orders made on 28 May 2026 be vacated.

7.    Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (Act), and on the ground set out in s 37AG(1)(a) of the Act, there be no disclosure, by publication or otherwise, of:

(a)    the portions of the document which is Confidential Exhibit SOC-A (Confidential Exhibit) to the affidavit of Stewart James O’Connell affirmed on 16 April 2026 (O’Connell Affidavit) that have been redacted by the parties in the document emailed to the chambers of Justice Bromwich on 3 June 2026; and

(b)    the text in paragraphs 17(a) and (b) on page 80 of the O’Connell Affidavit, save for the words “disclose any terms of this Deed” in (a) and “Make any representations as to any of the terms of this Deed” in (b).

8.    The Confidential Exhibit and the O’Connell Affidavit are to be confidential documents for the purpose of rule 2.32(1)(b) of the Federal Court Rules 2011 (Cth).

9.    Order 7 does not prevent disclosures to and between the following people:

(a)    judicial officers of this Court;

(b)    necessary court staff (including transcription service providers);

(c)    the parties, including the Intervening Party; and

(d)    legal representatives of the parties instructed in these proceedings, including in-house counsel of the Intervening Party.

10.    Order 7 applies until 5.00 pm on 3 July 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an adjudication on an interlocutory application filed by the respondents seeking declarations to the effect that the applicant, Mr Ofir Birenbaum, breached the Settlement Deed by which the parties agreed to resolve the substantive defamation proceeding. The first respondent is the company trading as Cairo Takeaway, the venue where the events giving rise to the substantive defamation proceeding took place. The remaining respondents are individuals associated with that company. The Deed was executed by and between Mr Birenbaum, the respondents, Nationwide News Pty Ltd (the publisher of the Daily Telegraph) and a reporter and videographer who had attended Cairo Takeaway with Mr Birenbaum.

2    Notices of discontinuance to reflect the settlement reached have not yet been filed in respect of either Mr Birenbaum’s originating application, or the respondents’ cross-claim. Those steps are unaffected by the declaratory relief sought. I expect that those notices will be filed once this judgment is delivered and any other final orders, including on the question of costs and any other residual issues, have been made.

3    The respondents seek declarations that Mr Birenbaum breached cl 18 of the Deed, by which the parties agreed not to make or procure or endorse the making of any statement inconsistent with an annexed Joint Statement. In the alternative, the respondents seek declarations that Mr Birenbaum’s conduct breached cl 17 of the Deed, which prohibits the making of representations as to any terms of the Deed.

4    Mr Birenbaum opposes any declaratory relief being granted, both on the merits and alternatively in relation to the exercise of discretion if the merits are made out. However, he did not oppose the bringing of this interlocutory application on jurisdictional grounds. I am satisfied that this Court has jurisdiction to entertain this application as the proceeding remains on foot.

5    In relation to cl 18 of the Deed, the factual issue requiring determination is whether Mr Birenbaum personally, and/or via his solicitor, Ms Rebekah Giles, acting on his behalf and within the scope of her retainer, made public statements and other communications that were inconsistent with the Joint Statement agreed to be published under the Deed. If that is decided in the respondents’ favour, there remains the question of whether the discretion to grant declaratory relief should be exercised. The relief sought in relation to cl 17 would have required other more specific factual determinations, but as it happens it has not been necessary for me to consider those questions.

The context for the Deed and the Joint Statement

6    The question of whether the Deed has been breached requires considering its relevant terms in their wider factual and legal context. In turn, the Joint Statement is to be considered in that context, albeit that the primary focus in resolving the question of inconsistency will be on the specific words used.

7    The settlement or other resolution, in whole or in part, of litigation is central to the administration of justice, not just in this Court, but in courts throughout Australia. From the point of view of most if not all courts, it would be impossible for justice to be administered effectively if all cases that were commenced proceeded to a trial or other contested hearing. Correspondingly, anything other than a reasonably high rate of settlement would seriously compromise the ability of courts to hear those matters that are truly incapable of compromise. Absent such a high rate of resolutions, the administration of justice would be prejudiced.

8    The objective of promoting the resolution of disputes without adjudication, or with only limited or partial adjudication, is amply reflected in the statement in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) that the overarching purpose of the civil practice and procedure provisions in that Act is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. Section 37M(2) sets out a non-exhaustive list of objectives of that overarching purpose, as follows:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

9    Section 37N then imposes a duty on parties to litigation to conduct proceedings, including (but not limited to) negotiations for settlement, in a way that is consistent with the overarching purpose in s 37M(1). Section 37N also imposes a duty on a party’s lawyers directly to take account of that party’s duty and assist them to comply with that duty. The section also provides that: a judge may require a party’s lawyer to provide them with an estimate of the duration of the proceeding and the likely cost; a judge must in exercising the discretion to award costs take account of any failure by a party or their lawyer to comply with each of their duties; and if a lawyer is ordered to bear costs personally because of a failure to comply with their duty, that lawyer must not recover the costs from their client.

10    The overarching purpose, its objectives and the associated duty are directed to advancing the best interest of all parties in any given case. Contested litigation often ends up being lose-lose, rather than win-lose, regardless of the formal outcome. That is not only due to legal and other costs, including irrecoverable legal costs, but also due to the personal toll of litigation. That toll can include damage to reputation and relationships, as well as negative impact, both intended and unintended, on third parties and members of the wider public. Defamation proceedings often exemplify those effects. In contested defamation cases, even where one side has secured a successful outcome, both sides may have lost in the sense of being worse off than if they had not engaged in the litigation in the first place. It is often a question as to who has lost less, and that is not always the party who succeeds in formal terms.

11    I addressed the background of this litigation in a judgment about an unsuccessful strike out application brought by the respondents, concerning the “serious harm” element of the tort of defamation required to be proved by Mr Birenbaum: Birenbaum v H & A Nominees Pty Ltd trading as Cairo Takeaway (strike out application) [2025] FCA 1345 at [5]. That paragraph reproduced a brief summary of the events leading to this litigation contained in the respondents’ submissions, which was not disputed for the purposes of that adjudication. It is also convenient in this judgment to reproduce the following portion of that summary:

[4]    Cairo Takeaway, the first respondent, is an Egyptian restaurant on Enmore Road in Newtown. Mr Hesham El Masry, the second respondent, is the sole director and shareholder of Cairo Takeaway and Mr Talaat Yehia, the third respondent, is a chef at Cairo Takeaway.

[5]    The respondents are well known to be publicly ‘pro-Palestinian’ and have been outspoken in respect to their opposition to the ongoing war in Gaza. The applicant [Mr Birenbaum] has cultivated and has achieved a public profile as being ‘pro-Israeli’ in the sense of supporting and advocating for the State of Israel generally and with respect to the ongoing war in Gaza.

[6]    On 11 February 2025 [Mr Birenbaum] and a reporter, photographer and videographer from the Daily Telegraph arrived in the vicinity of Cairo Takeaway. [Mr Birenbaum] entered the restaurant wearing a white baseball cap with a blue Star of David clearly visible on the front panel of the cap and a white t-shirt upon which a gold Star of David pendant sat, clearly visible. [Mr Birenbaum] also wore sunglasses and carried a green grocery bag with something inside it.

[7]    [Mr Birenbaum] entered Cairo Takeaway around midday and placed a takeaway order for a hibiscus tea. The applicant collected his takeaway order but did not immediately leave the restaurant. The applicant moved to the back of the restaurant where he remained for over a minute before moving back to the front of the restaurant and exiting. As he exited he entered into a conversation with a waitress who was standing outside the front door of the restaurant and was looking out at the street.

[8]    [Mr Birenbaum] then walked down the street and returned a short time later with a Daily Telegraph reporter, photographer and a videographer. The Daily Telegraph reporter and photographer entered the restaurant, and the reporter asked some questions of the waitress, and the photographer took photos. The interaction with the waitress did not end amicably. The Daily Telegraph team and [Mr Birenbaum] left a short time after they arrived and continued up Enmore Road. They were followed up the street by the waitress who was filming parts of the interaction on her phone. Mr Yehia arrived a short time later and spoke with the applicant and the Daily Telegraph team.

12    In short, Mr Birenbaum’s defamation case arose from him going into Cairo Takeaway, a venue apparently known by him to be supportive of Palestinian causes. He wore a cap with the central motif of the flag of the State of Israel, and other symbols associated with his identity as a Jewish man, ostensibly to see if he would be treated differently because he was Jewish. That is his benign characterisation of why he went into Cairo Takeaway. That characterisation might or might not have been supported by the evidence at trial had one occurred or been accepted in a judgment following such a trial.

13    Based on the defence filed by the respondents, a competing characterisation that was likely to have been advanced at trial was that Mr Birenbaum engaged in an act of unjustified provocation. Again, such an alternative characterisation might or might not have emerged at any trial or been accepted in a judgment following such a trial.

14    The characterisation of Mr Birenbaum’s conduct was almost certainly going to feature at trial because the pleadings disclose a live issue as to whether the serious harm he alleged was caused by the imputations in the publications he sued upon or was a result of his conduct. Mr Birenbaum had to prove, on the balance of probabilities, that the serious harm he alleged was more likely to have been caused by the publications than by his conduct.

15    In relation to Mr Birenbaum’s stated motivation for the conduct outlined above, he does not assert in his pleadings that there was any material reaction by the people working at Cairo Takeaway at the time he first went into the venue, let alone any antisemitic remarks. That was not his case. But it remains the fact that there was no allegation of any reaction of the kind that he said he wanted to test. Mr Birenbaum and his solicitor, Ms Giles, later characterised his conduct as an exercise in “public interest journalism”. Putting to one side how his actions could be regarded as contributing to serious and responsible journalism as the term “public interest journalism” implies, it seems to have been a barren exercise in terms of the reaction of the staff, at least during his visit to Cairo Takeaway.

16    The proceeding brought by Mr Birenbaum mostly concerned the respondents’ reaction to his conduct after his visit to Cairo Takeaway. That reaction was regrettable. Without going into all the details, not least because the characterisation of them and their legal effect, including as to defences, were going to be contested trial issues, the Instagram page for Cairo Takeaway initially attributed to Mr Birenbaum things he did not say and actions he did not take during his visit to Cairo Takeaway. From reading the publications sued upon, I infer those factual inaccuracies probably came about from those posting on the Cairo Takeaway Instagram page not being careful to verify the accuracy of what was posted, an obvious hazard of social media.

17    The subsequent variation to the publications also sued upon reveal that when the most egregious errors were identified, they were corrected within a relatively short time, and an apology was published on Instagram. At the hearing of this application, Mr Birenbaum’s senior counsel acknowledged that the most significant imputation sued upon was that alleged to be carried by the first Instagram post, which was online in that form for a relatively short time. Having regard to the pleadings, it seems there was also a live dispute to be litigated as to whether less serious imputations drawn from subsequent posts on the Instagram page for Cairo Takeaway after the first post was changed were conveyed so as to render those publications defamatory.

18    The respondents advanced defences in relation to all of the pleaded imputations. The respondents also brought a cross-claim against Mr Birenbaum, seeking a declaration that he committed trespass by entering the Cairo Takeaway premises without consent, in addition to damages (including exemplary damages) for trespass to land. That cross-claim included allegations that the true purpose of Mr Birenbaum’s visit to the restaurant was to produce a reaction from its staff and portray the restaurant, staff and owner as antisemitic, and that entry for that purpose was not permitted.

19    As in nearly all defamation cases like this that are inherently unlikely to have any lasting or longer-term impact on anyone involved, a major risk of detriment to all concerned was going to be further reputational harm by the very conduct of the trial, and legal costs. There was a real risk that reputational harm, for both Mr Birenbaum and for the respondents, would arise from the case being litigated rather than settled. In the case of Mr Birenbaum, that reputational harm could well have been greater than anything that arose from the Instagram posts, the subsequent media publications, and the public’s reaction to those posts and publications, including the parts that were not the subject of any imputations. The surrounding conduct, rather than the specific imputations sued upon, was likely to have been front and centre in the trial, and especially in the inevitable media coverage.

20    On any view, there was a substantial risk that the costs of the litigation going to trial, on either side, would far exceed the fruits of a successful verdict being obtained by Mr Birenbaum, let alone if his case failed. There was very substantial litigation risk on both sides. This was, on any reasonable view, a case that cried out for settlement.

The settlement and the Joint Statement

21    On 26 March 2026, I was informed that the proceeding had settled and assumed that some kind of compromise had been arrived at. Given the confidential nature of the settlement, I did not expect to see the Deed, although sometimes settlement deeds are disclosed in the course of an application for a suppression or non-publication order which forms part of the settlement.

22    The first mainstream media reporting of the settlement that I became aware of, most likely in the same way as many members of the public, contained statements attributed to Mr Birenbaum and Ms Giles, which described the settlement as a win and a complete vindication for him. Contrary to my initial impression, these statements led me to believe that there must have been a complete capitulation by the respondents, rather than a compromise. However, once I had regard to the terms of the Deed, it became clear that the settlement was a true compromise. Despite this, the present dispute is whether the statements reported upon were made by Mr Birenbaum (including via Ms Giles), and if so, whether those statements were inconsistent with the Joint Statement that had been agreed between the parties, Nationwide News, the reporter and the videographer, so as to be in breach of cl 18 of the Deed, not whether they were inconsistent with the Deed itself, although the Deed may form part of the relevant broader context.

23    The Joint Statement reflected a sensible and mature outcome, by way of a genuine compromise, in the best interests of all concerned. It was to be published by the parties to the Deed at 9.00 am on a defined Publication Date, which ended up being 30 March 2026. However, as the analysis below demonstrates, 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.

24    Importantly, certain representations in those statements as reported upon were in a general sense highly misleading and even deceptive, when compared with the Deed as a whole, and when compared with the Joint Statement which reflected an agreement as to what would be said about the settlement. I cannot provide the full explanation for the first part of that conclusion without disclosing the confidential parts of the settlement provisions in the Deed. However, as explained below, it would risk prejudice to the proper administration of justice to disclose those portions as doing so could further imperil the prospect of settlement in other proceedings, beyond the damage caused to that objective by the statements attributed to Mr Birenbaum and Ms Giles.

25    The content of the public statements attributed to Mr Birenbaum and Ms Giles went beyond the Joint Statement and did not disclose the existence of a true compromise that was at the very centre of the Joint Statement (and of course the terms of the settlement reflected in the Deed). As will be seen, those statements, if shown to have been made by Mr Birenbaum (including through Ms Giles) are, at the very least, in breach of the duty in s 37N(1) and (2) of the Federal Court of Australia Act, as they constitute a reasonably flagrant departure from the overarching purpose in s 37M(1). However, that is a matter that goes to the exercise of discretion, both as to the making of the declarations and as to costs. Before that point can be reached, I am called upon to decide whether, additionally, that conduct was a breach of the Deed.

26    For the following reasons, I have found that there was a breach of the Deed, by reason of numerous material inconsistencies between each of those statements and the terms and overall tenor of the Joint Statement. Accordingly, the respondents have made good their case for the making of declarations to that effect.

27    At this point, it is convenient to address the confidentiality of the Deed, which was exhibited to an affidavit sworn by the respondents’ solicitor, and thereafter admitted into evidence. The entire Deed was subject to an interim suppression order made on 28 May 2026, which operates until two days after the delivery of this judgment. I made that order under s 37AI(1) of the Federal Court of Australia Act, because Nationwide News had sought an interim suppression order under s 37AI, and foreshadowed seeking a final suppression order under s 37AF(1)(b), on the ground in s 37AG(1)(a), that the order is necessary to prevent prejudice to the proper administration of justice. I did not consider it appropriate to make a final order to that effect at the time, and instead made only the interim order to allow the parties to address the interests of the proper administration of justice in light of the reliance placed on the Deed in my reasons. However, at my request, the parties have since provided a redacted version of the Deed which reflects the more limited subset of the Deed over which they maintain their application for suppression orders. As such, I will vary my previous orders to lift the interim suppression order in relation to the unredacted balance of the Deed.

The published statements

28    The following published statements are relevant to the present dispute, set out largely chronologically as follows:

(a)    A Briefing Note which was sent to a journalist at the Daily Mail and a journalist at Crikey, set out at Annexure A: Briefing Note. There were some limited and mostly immaterial variations between the versions of the Briefing Note sent to each of them. The reproduction of the longer version is preceded by a judgment note identifying those limited differences.

(b)    Mr Birenbaum’s statement, set out at Annexure B: Birenbaum Statement (Birenbaum Statement). This statement was published on Mr Birenbaum’s Instagram account and his X account, with the versions on each platform being substantially the same as the version set out at Annexure B: Birenbaum Statement, subject only to immaterial minor differences, as acknowledged by the parties during the hearing.

(c)    Ms Giles’ statement, set out at Annexure C: Giles Statement (Giles Statement).

(d)    the Joint Statement, set out at Annexure D: Joint Statement.

(e)    Cairo Takeaway’s statement, set out at Annexure E: Cairo Takeaway Statement (Cairo Takeaway Statement).

(f)    A segment on Sky News hosted by Ms Sharri Markson, the transcript of which is set out at Annexure F: Sky News Segment (Sky News Segment).

29    The timing and publication details of the above statements is discussed further below. It is first necessary to address the Briefing Note as, unlike the other publications, the identity of its author and of the person who sent it to the Daily Mail and Crikey is not apparent from the face of the document. Given the relief sought by the respondents is directed to whether Mr Birenbaum himself breached the Settlement Deed, it is appropriate to resolve that question before assessing whether the content of the statements made as listed in the preceding paragraph were inconsistent with the Joint Statement as alleged. There is no issue as to whether Mr Birenbaum relevantly published the statements attributed to himself which were posted to his Instagram and X account.

30    The existence of the Briefing Note was only revealed following its production by Mr Birenbaum as part of a tranche of documents produced in answer to a notice to produce (marked Exhibit 1R) addressed to him. That notice to produce required him to produce, the day before the interlocutory hearing, the following:

All documents and/or communications, including text messages, emails, and messages via social media accounts, evidencing the sending, provision or publishing by you, any agent of yours, or any person you instruct of any of the statements referred to in paragraphs 1 a-d and 2 of the respondents' Interlocutory Application dated 16 April 2026 to any person or organisation or company.

31    I proceed upon the basis that what was produced met the description in the notice to produce. No party suggested that I should do otherwise. Accordingly, I readily infer that the Briefing Note was produced as a document evidencing the sending, provision or publishing by Mr Birenbaum, his agent, or any person he instructed, of any of the statements referred to in paragraphs 1(a)-(d) of the interlocutory application. Those paragraphs in the interlocutory application referred to the publication of what are described in these reasons as the Giles Statement and the Birenbaum Statement.

32    The documents produced show WhatsApp exchanges between an unknown person and journalists from the Daily Mail and Crikey, which included the sending of the Briefing Note as a Microsoft Word file to each of them. The Briefing Note which was provided to each of those journalists was also produced by way of screenshots. Its contents provide general “background” on this proceeding, and include the Giles Statement and the Birenbaum Statement, foreshadowing their publication.

33    In cross-examination, Mr Birenbaum denied that he created or sent the Briefing Note to anyone. Mr Birenbaum stated that he assumed that a member of his legal team may have created the document and agreed that he was not surprised at its existence. That seems to me to be an entirely well-founded assumption and I accept his evidence as far as it goes. However, his evidence was incomplete on this topic, and to that extent I did not get the sense that he was telling the whole truth, or at least saying all that he knew about the Briefing Note. I address Mr Birenbaum’s oral testimony in more detail at [87] below. In any event, I accept that he did not personally author or disseminate the Briefing Note. That conclusion is also consistent with some of the language used in the document, which refers to him in the third person.

34    I consider that the most plausible inference is instead that Ms Giles (with or without the assistance of someone else acting on her behalf) created and disseminated the Briefing Note. I reach that conclusion based on the context in which the Briefing Note and the associated messages were produced, in addition to the considerations below.

35    The Briefing Note outlines the background to the proceeding and discusses the conduct of the litigation. It uses the phrase “we commenced proceedings for defamation” (emphasis added), lists the respondents, states “See statement of claim” and refers to Cairo Takeaway’s cross-claim against Mr Birenbaum, describing it as “alleging that his true purpose was [to] provoke antisemitic reactions from café staff and then portray them as such in the media”. This is all consistent with a document emanating from the firm of solicitors acting for Mr Birenbaum, Giles George, of which Ms Giles is a principal.

36    As detailed below, the Briefing Note also:

(a)    reproduces the Birenbaum Statement, preceded by the bolded words “ON RECORD STATEMENTS EMBARGOED UNTIL 9AM MON 30 MARCH”;

(b)    reproduces the Joint Statement with its bold heading after the Birenbaum Statement; and

(c)    reproduces the Giles Statement after the Joint Statement, preceded by the bolded words “On record statement by Rebekah Giles, Founder of Giles George, Solicitors for Ofir Birenbaum”.

37    In light of Mr Birenbaum’s evidence, the content of the Briefing Note (both the general text and the text of the statements by Mr Birenbaum and Ms Giles) and what was done with it, I infer that it is more likely than not that it emanated from the office of Giles George. There is no suggestion that anyone other than Ms Giles herself had carriage of this proceeding, which remained on foot and listed for trial at the time the Briefing Note was sent. The trial dates were not vacated until 17 April 2026. The only reasonable inference to draw, especially in the absence of any evidence from Ms Giles, is that it was created and sent by her, or someone acting on her behalf and at her direction, to the Daily Mail and to Crikey.

38    My conclusion is also bolstered by the fact that it was not until after this document was produced in answer to the notice to produce that Ms Giles’s affidavit was not read and she was not otherwise called to give evidence. I draw the ordinary inference that she was not called because it would not have assisted her client’s case in general, and on this issue in particular.

39    As detailed below, the Briefing Note was sent to “Joseph” at the Daily Mail at 4.50 pm on 29 March 2026 and to Danny Saeed at Crikey at 7.48 am on 30 March 2026. The first date and time was the evening before the Publication Date of 30 March 2026; and the second date and time was just over an hour before the time at which the Joint Statement was to be published, being 9.00 am on the Publication Date.

40    The Briefing Note itself is set out at Annexure A: Briefing Note. It warrants reading in full because its terms, particularly in light of the timing of its dissemination, strongly support the submission made by the respondents to the effect that Mr 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 by publishing their statements first or at around the same time. No real submission was made to the contrary, with Mr Birenbaum instead advancing a case that the relevant published statements were not inconsistent with the Joint Statement, and therefore not in breach of the Deed.

41    Having addressed the Briefing Note, I now turn to the chronology of key events. Based on the evidence before me, the events leading up to the publication of the statements referred to at [28] above, the acts of publication, and the events following publication were as follows:

(a)    On 26 March 2026, Mr Birenbaum, the respondents, Nationwide News and the associated reporter and videographer entered into the Deed, that being the last date recorded on either counterpart of the Deed.

(b)    At 4.50 pm on 29 March 2026, Ms Giles, or someone on her behalf, sent the Briefing Note to a WhatsApp contact named “Joseph Daily Mail”. The Birenbaum Statement included in the briefing note was titled “Statement of Ofir Birenbaum on his Instagram on Sunday 29 March” (c.f., 30 March in the version that was ultimately published by Mr Birenbaum). The relevant screenshot did not display the date, but I infer that the Briefing Note was sent on 29 March 2026 because the file was named “DM briefing note 29.03.26” and the subsequent screenshot showed messages sent at 5.52 am on 30 March 2026, meaning that the earlier message must have been sent prior to that time.

(c)    At 5.52 am on 30 March 2026, Ms Giles, or someone on her behalf, sent further messages to Joseph from the Daily Mail. They conveyed an amendment to the Briefing Note, namely that the Birenbaum Statement was being issued on that day, at the same time as the Joint Statement. The Birenbaum Statement was sent again, this time with the heading “Statement of Ofir Birenbaum on his Instagram on Monday, 30 March”.

(d)    At 7.48 am on 30 March 2026, Ms Giles, or someone on her behalf, sent the Briefing Note via WhatsApp to Danny Saeed, a journalist at Crikey.

(e)    At 9.04 am on 30 March 2026, the third respondent, Mr Yehia, posted the Joint Statement to his X account, as is apparent from the post itself.

(f)    On or before 9.06 am on 30 March 2026, Mr Birenbaum published the Birenbaum Statement on his Instagram account with a cover image titled “The Truth Wins”. That post is pinned as the first post on his profile, meaning it remains at the top of his feed and will not be moved down when newer posts are published. It was also published in the form of a “collaborative” post with three other Instagram accounts, being the accounts of the Australian Jewish News, Rabbi Yossi Friedman and Ms Sophie Calland. In this context, a “collaborative” post means that the post is jointly shared by those accounts, so that it appears simultaneously in the feed of all four accounts. This effectively increases the post’s reach, noting that the Australian Jewish News presently has around 44,000 followers and Rabbi Yossi Friedman presently has around 16,800 followers.

(g)    Between 9.06 am and 9.20 am on 30 March 2026, Mr Birenbaum sent a link to the Instagram post of the Birenbaum Statement to over 50 individuals and groups via WhatsApp and Instagram direct message. Not all of the recipients were able to be identified, but some of the recipients that were able to be identified have large public followings, including:

(i)    Ms Sharri Markson of Sky News, who has approximately 46,000 Instagram followers;

(ii)    Ms Erin Molan, an Australian podcaster, who has approximately 323,000 Instagram followers;

(iii)    Ms Caroline Marcus of Sky News, who has approximately 10,000 Instagram followers;

(iv)    Ms Marnie Perlstein, a published commentator, who has approximately 67,900 Instagram followers;

(v)    Mr Vladislav Alhazo, a world champion in powerlifting, who has approximately 86,000 Instagram followers;

(vi)    Mr Ed Halmagyi, a chef and author, who has approximately 45,500 Instagram followers.

(h)    At 10.03 am on 30 March 2026, Mr Birenbaum published the Birenbaum Statement on his X account with a cover image titled “The Truth Wins”.

(i)    At 10.05 am on 30 March 2026, Mr Birenbaum sent a link to his X account post referred to in (h) above to a group chat with an unknown number of individuals via WhatsApp.

(j)    Around and after 11.00 am on 30 March 2026, the respondents sent the Cairo Takeaway Statement to various media outlets, with the evidence unclear as to whom the exact recipients were. The solicitor for the respondents deposed that the statement was drafted in response to the publication of the Birenbaum Statement (including as it was published on Mr Birenbaum’s Instagram and X account) and the Giles Statement. As that was unchallenged, and it makes sense in context, I accept that is so.

(k)    Sometime on 30 March 2026, most likely at around the time the respondents sent the Cairo Takeaway Statement to various media outlets as recorded in the preceding subparagraph or soon thereafter, Cairo Takeaway published a post consisting of a series of slides with text on the Cairo Takeaway Instagram account about what had occurred and expressing disappointment with the publication of the Birenbaum Statement and the Giles Statement. The caption of the post pointed viewers to the link in their Instagram biography which took viewers to the Cairo Takeaway Statement.

(l)    At 1.13 pm on 30 March 2026, Mr Birenbaum posted the Joint Statement on his X account, with a cover image titled “Joint Statement of the Daily Telegraph, Ofir Birenbaum and Cairo Takeaway”.

(m)    The reproduction on Mr Birenbaum’s Instagram account of the Joint Statement does not show the time that it was published on 30 March 2026. Mr Birenbaum seeks an inference that it was published at 9.00 am, being the time stipulated in the Deed. However, he provided no evidence of the actual publication time. His oral evidence in chief was brief and directed primarily to correcting by replacement a sentence in his affidavit. He was not asked about the publication time in cross-examination. The respondents ask me to infer that Mr Birenbaum published the Joint Statement on his Instagram account at around the same time as he published the Joint Statement on his X account, namely at or about 1.13 pm on 30 March 2026, as this would represent a logical concurrence. Given Mr Birenbaum’s behaviour towards the Joint Statement, I am unable to accept that it was likely that he decided to publish the Joint Statement prior to the Birenbaum Statement as that would undermine the evident strategy which he was involved in implementing. I consider that it is more likely that he published the Joint Statement on his Instagram account at about the same time as he published the Joint Statement on his X account. It follows that I conclude it is most likely that at some time proximate to 1.13 pm on 30 March 2026, Mr Birenbaum posted the Joint Statement on his Instagram account, with a cover image titled “Joint Statement of the Daily Telegraph, Ofir Birenbaum and Cairo Takeaway”. That post is pinned as the second post on his profile, meaning it always appears after the post displaying the Birenbaum Statement referred to at (f) above.

(n)    Sometime on 30 March 2026, Cairo Takeaway posted the Joint Statement to its Facebook and Instagram page, with a cover image titled “Joint Statement of the Daily Telegraph, Ofir Birenbaum and Cairo Takeaway”.

(o)    At various times on 30 March 2026, a number of media outlets published articles that included elements of the Birenbaum Statement, the Giles Statement, the Joint Statement, the Cairo Takeaway Statement, and a further comment from Ms Giles. That comment was apparently made in response to the Cairo Takeaway Statement, whereby Ms Giles stated “Mr Birenbaum is free to explain his reasons for participating in this public interest journalism investigation”. The details of the media publications are as follows:

(i)    At 10.52 am on 30 March 2026 and later updated at 2.23pm, the Sydney Morning Herald published an article titled “War of words erupts after Telegraph apologises for undercover cafe stunt”.

(ii)    At 12.56 pm on 30 March 2026 and later updated at 3.17pm on that day, the Daily Mail published an article titled “Fresh legal war erupts hours after ‘Undercover Jew’ settlement was reached between activist and Palestine-supporting café”.

(iii)    Sometime on 30 March 2026, Crikey published an article titled “War of words emerge after Daily Tele and Cairo Takeaway settle cases following ‘UNDERCOVERJEW’ scandal”.

(iv)    At 3.47 pm on 30 March 2026, the Guardian published an article titled “Daily Telegraph apologises as dispute reignites between pro-Israel activist and Middle Eastern restaurant Cairo”.

(v)    Sometime earlier on 30 March 2026, and last updated at 7.13 pm, Australian Jewish News published an article titled “Birenbaum ‘vindicated’ as Cairo Takeaway defamation case settles” The solicitor for the respondents deposed to that article initially containing a reference to Mr Birenbaum “winning” his defamation proceedings, which was later amended to remove the reference to “winning”.

(p)    Sometime on 30 March 2026, the respondents became aware of a video segment on Sky News that reported on the finalisation of the proceeding without publishing the Joint Statement in full. That segment was published on the Sky News website, the Sky News YouTube Channel and the Sky News Facebook page. The segment referred in three places to compensation being paid to Mr Birenbaum from the respondents, including by the statement “Birenbaum refused to comment on the amount of compensation paid to him other than to say he’s pleased with the confidential terms of the resolution”.

(q)    On 11 May 2026, the post referred to at (k) above was deleted from Cairo Takeaway’s Instagram account.

Primary declaratory relief – the Giles Statement and the Birenbaum Statement

42    Prayer 1 of the interlocutory application seeks a declaration that Mr Birenbaum breached cl 18 of the Deed by publishing and/or procuring Ms Giles to publish the Giles Statement and the Birenbaum Statement (including the versions published on his Instagram and X account). A statement can be made by publishing a written version of it. As will be seen, and as raised at the hearing of the interlocutory application, the use of the word “procuring” to describe the content of Ms Giles’ conduct goes further than is needed for Mr Birenbaum to be held responsible for it. Clause 18, under the subheading “Confidentiality” which precedes cl 17, provides:

Without limiting clauses 6 to 11 above, the Parties further agree not to make any statement inconsistent with the Joint Statement and will not procure or endorse any other person making any statement inconsistent with the Joint Statement. Upon the signing of this Deed, Cairo Takeaway will direct its employees not to make any statement inconsistent with the Joint Statement.

(Emphasis added.)

43    It is important to be clear that the agreement contained in this clause is that no party will either:

(a)    make any statement that is inconsistent with the Joint Statement; or

(b)    procure or endorse any other person making any statement that is inconsistent with the Joint Statement.

44    A party may breach cl 18 in the sense referred to at subparagraph (a) above either by making an inconsistent statement themselves or through someone acting on their behalf. In a legal context, the clearest example of something being done on behalf of a person involves that thing being done on their behalf by their solicitor. That is not confined to acts done on direct and explicit instructions – to require express authority for every act done by a solicitor would render legal representation impracticable or even unworkable on a day-to-day basis. Although a prudent lawyer will often seek explicit instructions before engaging in particular conduct on behalf of a client, because such steps will ordinarily bind a client and a client may not wish to be so bound, acts are also frequently undertaken on behalf of a client pursuant to general instructions or within the ordinary scope of the retainer. This is most apparent in litigation, where steps taken by a solicitor are ordinarily attributed to their client. It would therefore be artificial to refuse declaratory relief for a breach of cl 18, on the basis that a statement was found to have been made on behalf of a party to the Deed that was inconsistent with the Joint Statement, and thereby at law made by them (including being made by publication of a written statement), but was not found to have been procured by them as though they were operating separately in a legal sense.

45    Alternatively, prayer 3 of the interlocutory application seeks declarations that by the same conduct in relation to the same publications, Mr Birenbaum breached cl 17 of the Deed.

46    Clause 17 of the Deed includes information over which the parties to the Deed maintain their application for a suppression order. As such, the interim suppression order in force as varied on and from the publication of these reasons (as discussed at [27] above) prevents the reproduction of cl 17 in full. Nonetheless, it suffices for present purposes to note (without disclosing information contrary to the varied interim suppression order) that under cl 17, the parties agreed not to:

(a)    disclose any of the terms of this Deed, [redacted];

(b)    make any representations as to any of the terms of this Deed, [redacted];

(c)    permit any other person to disclose any of the terms of this Deed or make any representations as to any of the terms of this Deed,

either directly or indirectly, except insofar as:

(i)    each of the parties may disclose the terms of this Deed:

(A)    to their legal advisers; or

(B)    if compelled by law, but then only to the extent required by law; and

(ii)    each of the parties may:

(A)    say that the matter has been settled; and

(B)    publish or republish the Joint Statement,

save and except that the Parties agree that any publication of the Joint Statement on social media or any other online forum will only occur where either (a) any function preventing or prohibiting third parties from commenting publicly In response to the publication of the Joint Statement will be enabled, or (b) where the relevant platform does not allow for the making of comments by third parties in response to the publication of the Joint Statement.

For the avoidance of doubt, the Parties agree that the Joint Statement will not be published on social media or any other online forum where comments cannot be disabled, prevented and/or prohibited.

47    Had I been forced to resolve the merits of this dispute upon the alternative claim for relief advanced by the respondents in relation to cl 17, I would have had to give serious thought to whether a suppression order under s 37AF(1)(b) of the Federal Court of Australia Act would indeed have been necessary to prevent prejudice to the proper administration of justice, as required under s 37AG(1)(a). There is a tension between avoiding prejudice to the proper administration of justice in this proceeding, which would weigh against making such an order over evidence central to the dispute on that alternative claim given a primary objective of the administration of justice is to safeguard the public interest in open justice (see s 37AE), and avoiding prejudice to the proper administration of justice more generally by discouraging the settlement of proceedings, which would weigh in favour of maintaining the confidentiality of the operative settlement terms contained in the Deed. Given that I have formed the view that the latter form of prejudice has already, to some extent unknowable, been caused by the conduct of Mr Birenbaum and Ms Giles on his behalf, it would have been undesirable to do anything further to discourage the settlement of current and future proceedings in this Court, but that may have been required in the interests of open justice.

48    However, as will be seen from the reasoning below, I have been able to determine the dispute by reference to cl 18 alone. That is so notwithstanding the fact that the terms of cl 17 would have provided a stronger basis for exercising the discretion in favour of making the declarations sought not just in relation to cl 17 itself, but also in relation to cl 18. As such, while reproducing the confidential portions of cl 17 would strengthen the reasons for the conclusions I have reached, that would go further down the path that Mr Birenbaum and Ms Giles took of undermining the objective manifest in the Federal Court of Australia Act of encouraging settlements in proceedings commenced in this Court. The way I have decided to balance the competing interests is to decide the case on declarations on a somewhat weaker basis in order to better protect the encouragement to settle.

Aids to determining the meaning of “inconsistent” in cl 18 of the Deed

49    At the heart of the dispute about cl 18 of the Deed is the interpretation of the word “inconsistent” as it appears in that clause. The principles of contractual construction are well established and conveniently set out in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[52], a decision relied upon by Mr Birenbaum. The existence of the dispute about whether certain actions taken by Mr Birenbaum, including via Ms Giles, were “inconsistent with the Joint Statement” suggests that the phrase is susceptible to more than one meaning such that the “true rule” is engaged and the Court may have regard to the surrounding circumstances: State Rail Authority (NSW) v Codelfa Construction Pty Ltd [1982] HCA 24; 149 CLR 337 at 352 (Mason J).

50    Unsurprisingly, the competing arguments seek a narrower or broader interpretation of “inconsistent”, which would render a breach of cl 18 more difficult or less difficult to establish according to the outcome sought. There may be an interpretation available in the abstract that is so narrow as to render cl 18 practically ineffectual, but that would be a most unattractive conclusion to reach about a commercial agreement, especially having regard to the remarks of French CJ, Nettle and Gordon JJ in Mount Bruce Mining at [51] that in the absence of a contrary intention, “a commercial contract should be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’”.

51    In the present context, the task of interpretation includes looking at the objective reasonable meaning of the term “inconsistent” as used in the context of all of cl 18, and especially the phrase “inconsistent with the Joint Statement”, the entirety of the Deed, including the clauses relating to the content and publication of the Joint Statement, and the nature of the dispute more broadly, as that sheds light on the context in which the Deed was entered into.

52    It is clear that the Joint Statement reflects a manifestation of the compromise reached. Its dissemination as a communication to that effect was an indispensable part of the settlement, and a key aspect of what the parties sought to achieve by entering the Deed. In that context, cl 18 needs to be interpreted in a way that supports the parties’ evident purpose, namely that the Joint Statement would be an effective communication of what the parties agreed to convey to the world. The obligation reflects the parties’ contractually expressed desire for that outcome to not be undermined by subsequent conduct, including by, in the Joint Statement itself, proscribing any partial reproduction of the Joint Statement. To that end, I am unable to accept the burden of Mr Birenbaum’s contention that he was, effectively, allowed by the terms of cl 18 to communicate whatever he wished about the settlement of this proceeding, provided he did not flatly contradict the Joint Statement.

53    In advancing their competing arguments, the parties relied upon external sources such as dictionaries and authorities across different areas of law to provide analogies or guidance on how “inconsistent” should be understood by reference to its ordinary usage and meaning.

54    As to legal authority, the parties directed me to several areas of law in which the concept of inconsistency has been interpreted. The respondents relied upon Mann v Carnell [1999] HCA 66; 201 CLR 1, which considered inconsistency in the context of waiver of legal professional privilege by the holder of the privilege acting inconsistently with the maintenance of the confidentiality which the privilege is intended to protect: [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). The respondents also directed me to Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; 266 CLR 428 at [32]-[35] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), which considered inconsistency for the purposes of determining the validity of State legislation under s 109 of the Constitution. The applicant directed me to an English decision, MS Amlin Marine NV v King Trader Ltd [2025] EWCA Civ 1387, which considered inconsistency for the purposes of reconciling different clauses in the same commercial insurance document.

55    I have considered those authorities, but the facts, circumstances and legal context in which the question of inconsistency arose in each case was so different to the present situation as to provide little in the way of helpful analogy or analogous reasoning.

56    Turning next to dictionary definitions, while such external sources can act as aids to the interpretation task, they cannot, on their own, be determinative. As Mahoney JA stated as a member of the New South Wales Court of Appeal, in relation to the use of dictionaries to ascertain the meaning of words, in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560 (citations omitted):

Dictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J. The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt the much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply.

In doing this, it is, of course, necessary first to determine what is the ordinary or natural meaning of the words used because primarily it is from that that the intention of the legislator or of the parties is to be ascertained… it is to be taken from the judge's understanding of the sense in which words are used … No doubt a judge will find it of assistance to know the meanings in which, as dictionaries show, the words have been used … But courts are not bound by such meanings.

57    Further, Mahoney JA warned against reliance on a single dictionary (at 561):

But there is no single authoritative dictionary and the court would, I think, improperly restrict itself if it had reference to one dictionary and not to another. Words forming part of the English language may have one or more meanings which are common to the language wherever used. It is to be expected that this will be so: otherwise the language would not be understood. And now for many years the literature and even the more ephemeral media publications of one country have commonly circulated in other countries of the English-speaking community. Words may, of course, have in one country meanings which are more frequently used than in another country or which may even be obsolete in one country but not in another.

58    Those remarks were cited with approval by Rares J in Kuzmanovski v New South Wales Lotteries Corp [2010] FCA 876; 270 ALR 65 at [40]. That case involved a dispute about the meaning of “bathe”. Rares J had regard to multiple dictionary definitions which defined the verb “bathe” as having “swim” as one of its meanings. His Honour considered that the dictionary definitions accorded with how “bathe” is commonly used in ordinary speech and found that an ordinary and natural meaning of “bathe” is “swim”. His Honour also quoted from House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [28] (Mason P, with whom Stein and Giles JJA agreed), as earlier quoted with approval in Polo/Lauren Co LP v Ziliani Holdings Pty Ltd [2008] FCAFC 195; 173 FCR 266 at [24] (Black CJ, Jacobson and Perram JJ) as follows:

A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.

59    Consistent with the approach taken by Rares J in Kuzmanovski, and the appellate authority his Honour cited and applied, I now turn to the dictionary definitions of “inconsistent” that are reasonably applicable to the present situation to frame the necessary task of interpretation:

(a)    The Macquarie Dictionary (ninth ed, Macquarie 2023), defines inconsistent as:

(i)    Lacking in harmony between the different parts or elements; self-contradictory.

(ii)    Lacking agreement, as one thing with another, or two or more things in relation to each other; at variance.

(iii)    Not consistent in principles, conduct, etc.

(iv)    Acting at variance with professed principles.

(v)    Logic incompatible.

(b)    The online Oxford English Dictionary accessed at the time of writing these reasons defines inconsistent as:

(i)    Without agreement or harmony, and related uses:

(A)    Not consisting; not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous.

(B)    Wanting in harmony between its different parts or elements; self-contradictory; involving inconsistency. Said of a single thing, or of action including two or more courses.

(c)    The online Merriam-Webster Dictionary accessed at the time of writing these reasons defines inconsistent as “lacking consistency” and provides examples such as “not compatible with another fact or claim” or “containing incompatible elements”.

(d)    The online Cambridge Dictionary accessed at the time of writing these reasons states that if “a reason, idea, opinion, etc. is inconsistent, different parts of it do not agree, or it does not agree with something else”.

(e)    The online Collins Dictionary accessed at the time of writing these reasons states that “[i]f two statements are inconsistent, one cannot possibly be true if the other is true”.

60    The above dictionary definitions broadly accord with my understanding of how “inconsistent” is used in ordinary parlance, namely as describing something lacking, to differing degrees, consistency with something else in some relevant or otherwise important respect. It is a word commonly used with a degree of nuance to suggest a relevant degree of variance or other incompatibility. Inconsistency can of course be established by contradiction, as reflected in the Collins Dictionary definition reproduced above. However, the concept of inconsistency, and the use of the word inconsistent, can be deployed to convey something less absolute than that, and, as indicated above, I consider it does so in the present context.

61    Although not apt in all usages of “inconsistent”, the dictionary sense of “lacking in harmony” seems a particularly apt description of the meaning of the term “inconsistent” as used in the present context, key features of which I have identified above. The same may be said about the like concepts in the definitions above, such as being at variance, discordant, or incongruous. The term must be understood to bear a degree of nuance when used to compare differing accounts of the same event, especially given one of those accounts is a joint statement intended to record the agreed outcome in the resolution of a dispute, as well as the parties’ satisfaction and aspirations relating to and arising from that outcome. The proscription on inconsistency in cl 18 should be read as encouraging the maintenance of the outcome reached and the basis upon which that outcome was achieved.

62    In the present situation, the consideration of inconsistency needs to be focused on the actual text of the relevant statements when compared to the text of the Joint Statement, as well as the context of the settlement, informed by the discussion above. It is not helpful to try to delineate precisely what inconsistency requires to comply with cl 18 in the abstract beyond the above observations.

Whether the Birenbaum Statement and the Giles Statement were inconsistent with the Joint Statement

63    The highwater mark for Mr Birenbaum’s argument about the statements made by him and by Ms Giles on his behalf is an assertion that difference is not inconsistency. That assertion can only have any general currency if it is taken to mean that difference is not necessarily inconsistency. Mr Birenbaum developed this point by asserting that a statement is not inconsistent with another statement simply because the impugned statement does not repeat everything in the other statement. That assertion must be approached with some caution before it can be accepted, even in a limited way. In particular, it addresses a situation where one statement is simply a subset of another, which may not, of itself, create inconsistency. However, much depends upon what was left out, in the context that any omission or partial reproduction was expressly agreed to not to be permitted, in a postscript to the Joint Statement itself. More fundamentally, that situation does not arise here, because the inconsistency asserted by the respondents does not arise merely from omission, but rather from a stark departure in tone and the inclusion of additional information in the context of that departure. In those circumstances, I am also unable to accept Mr Birenbaum’s submission that the statements were no more than a “celebration” of the Joint Statement.

64    Mr Birenbaum further asserts that, as a matter of ordinary language, a statement will be inconsistent with another if it contradicts it or is otherwise such that the two cannot stand together, being one of the more absolute dictionary definitions of inconsistency discussed above. While that circumstance undoubtedly would ordinarily establish inconsistency, that high a threshold does not necessarily have to be met for inconsistency to arise under cl 18, as I have indicated above. In this case, inconsistency is determined by comparing the Joint Statement with each of the other statements and the purpose of the proscription on inconsistency, understood in context. In any event, even if that higher standard was applied, there are key elements of contradiction between the Birenbaum Statement and the Giles Statement on the one hand, and the Joint Statement on the other, as developed below.

65    The Joint Statement needs to be read in both a general and a specific way. At a general level, it is what it the title suggests, being an agreed statement by the parties to the Deed, which has the following key features, paragraph by paragraph:

(a)    The first paragraph is a high-level introductory statement about Mr Birenbaum and representatives of the Daily Telegraph entering into Cairo Takeaway and that resulting in an incident with the staff there. It frames that conduct as giving rise to all that followed, but in a neutral way, reflecting compromise on the competing stances that would otherwise have been taken to trial, not only in relation to the defamation claim brought by Mr Birenbaum, but also the cross-claim for trespass brought by Cairo Takeaway.

(b)    The second paragraph states that the parties, being Mr Birenbaum, the respondents and the Daily Telegraph, are pleased that the legal dispute arising from that event has resolved on confidential terms. Notably, the confidential terms of settlement set out in the Deed are not disclosed beyond what is contained in the Joint Statement. The absence of further details is plainly deliberate. That sentence reinforces the settlement’s confidential nature, and is inherently conciliatory in its tone. There is no mention of any other benefit flowing from the settlement to Mr Birenbaum.

(c)    The third paragraph records Cairo Takeaway accepting that Mr Birenbaum was polite to staff when he entered and purchased a drink, and unreservedly apologising for statements that were false and defamatory. This is a clear reference to the proceeding brought by Mr Birenbaum. The paragraph also includes an apology for comments made to him by members of the public on Cairo Takeaway’s social media accounts. Notably, the apology is general in nature and does not expressly extend to the entirety of the respondents’ conduct in publishing all the materials on social media and elsewhere; rather, in context it is confined to the parts of those publications that conveyed the imputations sued upon. That said, for the ordinary reader, that degree of nuance is unlikely to be readily apparent and the apology might appear to be wider than its strict reach. It is important also to note that none of the natural persons who are respondents are recorded as having apologised, another element of compromise.

(d)    The fourth paragraph records the Daily Telegraph acknowledging that its conduct, in entering Cairo Takeaway without notice to see if Mr Birenbaum would be treated differently for the purposes of a newspaper article, caused distress to the staff and owner of Cairo Takeaway. The Daily Telegraph also offers an apology to Cairo Takeaway and their staff for causing that distress. Importantly, this paragraph, which refers to the Daily Telegraph’s purpose in neutral terms as being “for the purpose of a news article,” does not suggest that this took place as an exercise in public interest journalism, which was going to be a contestable, and in fact contested, issue at trial.

(e)    The fifth and final substantive paragraph again records that the three sets of parties are pleased that “these issues”, necessarily being the issues in the preceding four paragraphs, have been resolved in a constructive and satisfactory manner. The balance of the paragraph acknowledges that Australians should be able to express their racial and religious affiliations and debate issues in a respectful and dignified fashion, with the hope that the resolution of this dispute can be a positive example to others. All of this is conciliatory in tone and has a strong implication of compromise.

(f)    The final paragraph, in bold, requires any republication to be made in full and not in part.

66    The cornerstone of the respondents’ argument as to inconsistency turns on a characterisation of the tenor and effect of the Joint Statement and its specific terms, in contrast to the general tenor of, and specific claims in, the statements made by Mr Birenbaum and by Ms Giles on his behalf about the nature and effect of the settlement. In some respects, I consider the respondents’ characterisation to go further than what can be reasonably gleaned from the face of the Joint Statement. However, it is unnecessary to focus on the aspects that I consider go too far. Instead, I will focus on those that more closely reflect what the Joint Statement conveyed.

67    The respondents characterise the Joint Statement as conveying that no party had won, but rather that the proceeding had concluded on the basis of compromise. I consider that characterisation to be accurate, such that the Birenbaum Statement and the Giles Statement would be inconsistent with the Joint Statement if they could be properly understood as having conveyed a victory on the part of Mr Birenbaum. The Joint Statement is conciliatory in tone and conveys a general sense of compromise. It included apologies by Cairo Takeaway, the trading name of the first respondent, and by the Daily Telegraph, but not by Mr Birenbaum or the other two respondents. No part of the dispute headed for trial called for any apology from Mr Birenbaum, except in respect of Cairo Takeaway’s allegation of trespass, about which the Joint Statement was silent.

68    It is common in the settlement of defamation proceedings for the respondent to provide a limited form of apology, in this case in general terms for “false and defamatory” statements, without further admissions or concessions. As noted above, the true scope of the apology given can only be ascertained by considering the imputations sued upon, but the ordinary reader is likely to take a less restrictive view than that. Even with that wider view, the apologies in the Joint Statement are of that general kind, with no express indication of what is being referred to. That is consistent with the overall objective of final resolution by compromise. To characterise the Joint Statement in that way is also consistent with the terms of the Deed itself, which undoubtedly reflect a degree of compromise between the parties.

69    By contrast, and contrary to the entire tenor of the Joint Statement, and in particular its conciliatory tone, key parts of both the Birenbaum Statement (published in different places, as detailed above) and the Giles Statement are nothing short of a claim of capitulation rather than compromise. Mr Birenbaum uses language such “the Truth wins”, asserts that he has been “completely vindicated”, and points to “lies” being told about him that are the subject of an unreserved public apology. None of that is reflective of the content or tenor of the Joint Statement even upon the most cursory reading, let alone when it is read carefully and properly understood. The Giles Statement paints a similar picture of victory. It portrays the resolution as “an important win” for Mr Birenbaum and a “vindication for Jews across the globe” and suggests that “a lesser man would have cut his losses and walked away”, but that Mr Birenbaum “took on the risk associated with this litigation and prevailed”. It also refers to “lies” being made by “the guilty parties”, referring to all the respondents, not just Cairo Takeaway.

70    Mr Birenbaum suggests that his use of the term “vindicated” was justified by the apology given by Cairo Takeaway in the Joint Statement. However, that submission faces three insurmountable hurdles.

71    First, there was no basis whatsoever for any vindication to be found in the Joint Statement in relation to the natural person respondents. They gave no apology at all.

72    Secondly, Mr Birenbaum did not confine himself to referring only to one aspect of the settlement, namely the apology by Cairo Takeaway recorded in the Joint Statement. Rather, he claimed to have been “completely vindicated”, a statement that can reasonably be understood as asserting success against all the respondents, including in relation to the cross-claim. That language cannot fairly be read as referring only to the limited apology conveyed by the Joint Statement.

73    Third and more substantially, it is simply false to say that Cairo Takeaway apologised for any “lies” being uttered about Mr Birenbaum at all, let alone that it offered such an apology in unreserved terms. The Joint Statement makes no reference at all to any “lies” being uttered by the respondents. That is unsurprising, as such an allegation did not form part of Mr Birenbaum’s case. Falsity alone does not establish that a statement was made deliberately or with knowledge or awareness of any inaccuracy, error or misdescription, so as to render it a “lie”. Indeed, proving that a person made a statement with knowledge of its falsity, or with the requisite state of mind to characterise it as a lie, is often difficult. Ironically, the Birenbaum Statement is itself false in key respects as outlined above, and as such inconsistent with the third paragraph of the Joint Statement, even if it were to be understood in the unduly limited manner Mr Birenbaum suggests.

74    For similar reasons as above, Mr Birenbaum did not satisfactorily address Ms Giles’s use of the terms “win” and “vindication”, which also did not appear in the context of any reference to the limited apology by Cairo Takeaway recorded in the Joint Statement. As such, her statement conveyed an unqualified victory in relation to the proceedings as a whole, which she must have known was not what the Joint Statement conveys. Her reference to “lies” is similarly baseless for the reasons explained in the preceding paragraph.

75    In support of their argument for inconsistency the respondents also pointed to other aspects of the Birenbaum Statement and the Giles Statement that plainly go well beyond the Joint Statement and what it conveys, and to differing degrees contradict it or are otherwise inconsistent with it. In particular, the Joint Statement makes no reference to any other Jewish person being accused of staging acts of antisemitism, let alone anything of that kind in relation to Mr Birenbaum himself. It also includes nothing about the righteousness of Mr Birenbaum’s conduct, nor any positive attribution to him in bringing the proceedings in the first place. Both of those assertions are made in the Giles Statement, in particular in the first and final two paragraphs, and are inconsistent with the letter and tone of the Joint Statement, which was cast in a conciliatory, restrained and balanced manner, without the use of emotive or sensational language.

76    Finally, nothing in the Joint Statement addresses whether Mr Birenbaum’s conduct was, or was not, a stunt, by contrast to the Birenbaum Statement. The characterisation of Mr Birenbaum’s conduct as legitimate public interest journalism as found in the Birenbaum Statement and the Giles Statement is also wholly absent in the Joint Statement. To the contrary, the Joint Statement could cast some doubt on the legitimacy of the entire exercise in light of the apology by the Daily Telegraph. Those additional assertions are inconsistent with the Joint Statement in that they are entirely absent from it and inconsistent with its carefully chosen terms. That is especially so given that the characterisation of Mr Birenbaum’s conduct was, as discussed above, a live issue in the proceedings, which the parties opted not to address in the Joint Statement concerning its resolution.

77    For the above reasons, both the Birenbaum Statement and the Giles Statement not only fail to sit harmoniously with what the Joint Statement contains, but in material ways misrepresent what has been agreed upon. It is difficult to see how such statements could not be inconsistent with the Joint Statement. I find that they were inconsistent within the meaning of cl 18 of the Deed and therefore in breach of that clause.

The framing of the declarations sought – whether it was necessary that Mr Birenbaum procured Ms Giles to publish the relevant statements

78    Having found that both the Birenbaum Statement and the Giles Statement are inconsistent with the Joint Statement, it is necessary to address a further issue concerned with the form of the relief sought. As outlined above, the Birenbaum Statement and the Giles Statement were reproduced in the Briefing Note. The dissemination of the Briefing Note hence constituted a publication of the two statements, and also the making of them to the person to whom they were sent. In light of my conclusion above that the most probable inference is that Ms Giles (with or without the assistance of someone else acting on her behalf) was the creator and disseminator of the Briefing Note, there remains the question of whether this was done on her own behalf, or within the scope of her retainer with Mr Birenbaum and on his behalf, given he is the subject of the declarations sought by the respondents.

79    In closing submissions, senior counsel for Mr Birenbaum sought to draw a distinction between his client’s conduct and that of Ms Giles. He placed some stock in the precise form of the declarations sought by the respondents, which referred to Mr Birenbaum “procuring” Ms Giles to publish the relevant statements and to him “procuring” her to communicate to Ms Markson and/or an employee at Sky News (discussed further below). I indicated that my general stance for making orders and declarations is that the final wording may depart from the form drafted at the time they are originally sought. Senior counsel for Mr Birenbaum did not object to any such modifications, provided, he said, they are made to conform with the evidence that emerged and do not change the underlying nature of the respondents’ case. In that sense, I do not consider the term “procuring” to be essential to the substance of the respondents’ case and the relief they seek: see [43]-[44] above. Consistent with their submissions and evidence, it was sufficient for Ms Giles to publish the relevant statements on behalf of Mr Birenbaum. Those statements are taken to have been made to the immediate recipient and also to anyone else to whom they were subsequently republished, whether pursuant to his direct instructions, within the scope of those instructions more generally, or as part of Ms Giles’ retainer.

80    Despite senior counsel for Mr Birenbaum seeking to limit the contest to the question of whether Mr Birenbaum “procured” Ms Giles to make the relevant statements, I do not accept that it was reasonable to limit my assessment of what took place in that way. Ms Giles was in a position to depose to what in fact took place, and, I readily infer made or was party to making the forensic decision that she not give evidence. I consider it fair and appropriate to do the best that I can on the available evidence to determine what in fact took place, and to tailor any relief granted to what that fact-finding process justifies in the interests of justice. There was ample opportunity to be heard, and the substance of this very issue was raised during the course of the hearing. It could not reasonably be said that there was any denial of procedural fairness in that regard.

81    During discussions with senior counsel for Mr Birenbaum about the use of the term “procuring” in the interlocutory application, I raised whether any conclusion other than that Ms Giles was acting on behalf of Mr Birenbaum in making the publications would give rise to a conflict between them as to whether she was acting on instructions. I made clear that, in my view, the conclusion on this topic was binary: she was either acting on or within instructions, or she was not acting within instructions. I described the latter possibility as an unsavoury finding. In response, senior counsel for Mr Birenbaum did not suggest that Ms Giles was acting otherwise than on instructions from, or within the instructions given by, Mr Birenbaum in relation to the making of the publications. Senior counsel for the respondents also clarified that they were not seeking a finding that Ms Giles acted without instructions. In those circumstances, the only reasonable conclusion is that she was acting on Mr Birenbaum’s behalf.

82    In any event, Ms Giles has signed all of the pleading documents filed by her firm, Giles George. Her signature is also on all of the correspondence from Giles George in evidence, including correspondence dealing with the publication of the Birenbaum Statement and the Giles Statement. It is therefore plain that she has been closely involved in all aspects of this proceeding, including the coordinated plan to publish public statements on the same day as the Joint Statement. Ms Giles’ affidavit was not read, and she did not give evidence. Accordingly, there is no evidence to rebut the ordinary inference, arising in the circumstances, that she was acting on behalf of Mr Birenbaum as his solicitor, including in relation to the publication of the relevant statements by the dissemination of the Briefing Note. The proceeding is still on foot and there is no evidence or suggestion that she had ceased acting for Mr Birenbaum or that she was not acting as his solicitor in relation to these matters. Consistent with my observations at [44], a solicitor will ordinarily act on, or within the ambit of, their instructions, even if there is no evidence of any precise instruction being given. I am satisfied that it is fair and appropriate to proceed upon the basis that both the creation of the Briefing Note, and the sending of the Briefing Note to the Daily Mail and Crikey, was done by her (or on her behalf and at her direction) on behalf of Mr Birenbaum as part of, or falling within, her retainer.

83    For those reasons, I am satisfied that Ms Giles acted on instructions in publishing the Birenbaum Statement and the Giles Statement on behalf of Mr Birenbaum.

The primary declaratory relief in relation to the Sky News Segment

84    Prayers 2 and 4 of the interlocutory application seek a declaration that Mr Birenbaum breached cl 18 or, alternatively cl 17, of the Deed by making a particular representation on the topic of compensation himself or via Ms Giles, to Ms Markson and/or an employee or agent of Sky News. If made, that representation, as discussed further below, formed no part of the Joint Statement and was inconsistent with it, as addressed below. That relief was sought as a result of the respondents becoming aware of the Sky News Segment regarding the proceedings (referred to at [41](p) above). For the same reasons as immediately above, I consider that the respondents’ case is made out if Ms Giles communicated information about compensation on behalf of Mr Birenbaum, either as a result of his direct instructions or as part of her retainer. In light of the evidence that emerged, the respondents’ case for breach of the Deed did not depend on the specific act of “procuring”, despite that term being used in the interlocutory application. Mr Birenbaum accepts that if I found that the communication to Sky News took place by him or someone on his behalf, then it breached cl 17 of the Deed. However, he disputes that such conduct would constitute a breach of cl 18 of the Deed. For the reasons below, I find that it is unnecessary to consider the alternative argument advanced in relation to cl 17 as a breach of cl 18 has been established.

85    The first question is whether Mr Birenbaum communicated any reference to compensation to Ms Markson personally. In his affidavit, Mr Birenbaum deposed that in the lead up to the Sky News Segment:

(a)    “I did not personally have any contact with Ms Sharri Markson or any other person at Sky News (or any related entity) concerning the resolution of my legal dispute with the Respondents or the terms”; and

(b)    “In particular, I did not communicate to Ms Markson or to any other person at Sky News that compensation was payable, or had been agreed to be paid, to me as a result of that resolution.”

The statement quoted at subparagraph (a) above was not read, as it was incorrect. Instead, brief oral evidence in chief was adduced on communications that he did have with Ms Markson regarding the resolution of the dispute, with the contrary reference in the affidavit being attributed to a faulty memory. The true position shown by the documents produced by Mr Birenbaum is that he in fact personally communicated to Ms Markson and Ms Caroline Marcus (another journalist at Sky News) on 30 March 2026 by sending his “The Truth Wins” post on Instagram to them, amongst a number of others, via direct messages. Given the content of the Birenbaum Statement, those direct messages clearly constituted contact concerning the resolution of the dispute, and thus prompted the correction in oral evidence in chief.

86    Under cross-examination, Mr Birenbaum also indicated that he had communicated with Ms Markson via WhatsApp on 30 March 2026 and those messages were then produced and tendered as an exhibit. The WhatsApp exchange regarded Ms Markson’s intended coverage of what he described in the messages as “my case”. The topic of compensation was not mentioned in that conversation. Mr Birenbaum gave evidence under oath to the effect that he was aware of those WhatsApp messages when he swore the evidence contained in subparagraph (a) of the preceding paragraph, and that he was telling the Court that the WhatsApp conversation did not concern the resolution of his legal dispute. This was apparently the basis on which he considered that the evidence in subparagraph (a) was true and correct at the time he swore his affidavit despite being aware of those messages. Although the messages themselves do not strictly refer to the resolution of the dispute, in context that was their central concern, given they were sent on the same day as the publication of the Joint Statement and in contemplation of Ms Markson’s coverage, which was eventually published as the Sky News Segment.

87    Mr 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. During cross-examination, Mr Birenbaum denied communicating to Ms Markson anything about compensation being paid to him. If that evidence was false, it would have amounted to giving a direct lie on oath. Notwithstanding my reservations about his evidence, I do not consider it likely that he deliberately gave false evidence. Despite him acknowledging his faulty memory in relation to the unread statement in his affidavit reproduced at paragraph [85(a)] above which he then corrected in oral evidence, I also do not consider it likely that he also forgot about the existence of a different communication with Ms Markson or another person at Sky News concerning compensation. I therefore accept his denial of making the communication concerning compensation to Ms Markson or another person at Sky News himself.

88    The question then arises as to who else could have provided that information to Ms Markson. Given the circumstances, the only logical and plausible person, in my view, is Ms Giles. No alternative source was suggested, and the provision of such information concerning that limited aspect of the Deed was not in the apparent interest of anyone else other than Mr Birenbaum. As discussed above, 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.

89    In cross-examination, Mr Birenbaum also indicated that he understood Ms Markson and Ms Giles to be friends, a point that was not revisited in re-examination nor otherwise contested. Absent evidence to the contrary, there is ample evidence to infer that it is more probable than not that the information about compensation provided to Ms Markson came from Ms Giles. In support of that conclusion, WhatsApp messages subsequently produced by Mr Birenbaum (marked Exhibit 2A) include a message from him to Ms Markson stating: “Rebekah told me you’re covering my case today”?

90    As outlined above, Ms Giles swore an affidavit. However, apparently without any prior notice to the respondents, that affidavit was not read. She had been expected to be cross-examined and there was no suggestion that she was not available to give evidence. If the true position was that she had not communicated to Ms Markson any assertion about a compensation payment to Mr Birenbaum, she could have given evidence to that effect. I infer that she did not give evidence because it would not have assisted her, or her client, Mr Birenbaum, in that respect. I am therefore more comfortable in drawing an inference that it was her who communicated something to Ms Markson about compensation.

91    In submissions opposing such an inference being drawn, Senior Counsel for Mr Birenbaum noted that the Sky News Segment was incorrect in stating that compensation had been paid, using the past tense, which had not happened, having regard to the terms of the Deed. As a result, he suggested that Ms Markson had reached the conclusion regarding compensation as a result of “join[ing] the dots” or by inference from other information, because someone who was aware of the exact settlement terms like Ms Giles would not have disclosed the payment of compensation in a way that is materially wrong (as opposed to disclosing it at all, it seems). I am unable to take that submission seriously, let alone accept it. At best, it is a weak inference that is unsupported by any evidence other than an unduly beneficial and pedantic interpretation of what Ms Markson said.

92    I therefore infer that the information about compensation being paid to Mr Birenbaum was conveyed by Ms Giles to Ms Markson on behalf of Mr Birenbaum. He disputes that such conduct constituted a breach of cl 18 of the Deed, because the Joint Statement says nothing about compensation. Although that is the case, it is not apparent to me how that stance can be maintained. The Joint Statement refers to the dispute being settled on a confidential basis. A reference to the payment of compensation from one party to another, is inconsistent with that language and notion. I am unable to accept Mr Birenbaum’s submission that the reference to compensation cannot be inconsistent with the Joint Statement because it is not mentioned in the Joint Statement. That is to limit the concept of inconsistency to contradiction, which I have already rejected; but in my view it is contextually contradictory anyway.

Whether discretion should be exercised

93    I can put short shrift to the suggestion by Mr Birenbaum that there was no utility in granting declaratory relief. First and foremost, the evidence establishes that Mr Birenbaum still had the Birenbaum Statement on his X account and on his Instagram account very recently, and there is no evidence that he has any intention of taking them down. As of 12 May 2026, the Birenbaum Statement on Mr Birenbaum’s X account had 18,000 views, whereas the Joint Statement on his X account only had 2,200 views. That suggests that many people have only seen the Birenbaum Statement and not the Joint Statement. Similarly, although viewership statistics are not available on Instagram, the Joint Statement was only published to Mr Birenbaum’s page, whereas the Birenbaum Statement was also published in collaboration with other accounts, increasing the reach of that post. That continuing state of affairs which I have found is inconsistent with the Joint Statement, and in certain respects contradictory to it, warrants the making of declarations that Mr Birenbaum breached cl 18 of the Deed through the publication (including via Ms Giles) of the Birenbaum Statement and the Giles Statement.

94    Secondly, and in any event, as I have explained in some detail, settlement of proceedings, in whole or in part, is central, in the most practical way, to the proper administration of justice. There is real utility in making declarations that signal that this objective has been endangered by a breach of a deed of settlement, even though, fortuitously, it has not led to the settlement being abandoned. Had the respondents sought to abandon the settlement because of the conduct of Mr Birenbaum, there was a real chance that would have been achieved. It is made all the worse that this conduct was not just facilitated by a solicitor, Ms Giles, but actively driven by her.

Conclusion

95    For the foregoing reasons I am satisfied that the proper foundation has been established for making declarations of breach of cl 18 of the Deed, and that the discretion to do so should be exercised. The declarations I make are as follows:

(1)    The applicant, Ofir Birenbaum, breached clause 18 of the Deed of Settlement executed on 26 March 2026 by publishing and thereby making and/or Rebekah Giles, acting on his behalf and within the scope of her retainer, publishing and thereby making:

(a)    a written statement by Ms Giles on 30 March 2026, which appears at page 6 of the affidavit of Stewart O’Connell affirmed 16 April 2026 in support of the interlocutory application dated 16 April 2026 (O’Connell Affidavit), the text of which is reproduced at Annexure C to the judgment.

(b)    his own written statement on 30 March 2026, which appears at page 7 of the O’Connell Affidavit, the text of which is reproduced at Annexure B to the judgment.

(c)    his own statement on 30 March 2026 on his Instagram account @ofirfromisrael which appears at pages 8-13 of the O’Connell Affidavit, the text of which is reproduced in substance at Annexure B to the judgment.

(d)    his own statement on 30 March 2026 with a title “The Truth Wins” on his X account @ofirfromisrael which appears at pages 14-16 of the O’Connell Affidavit, the text of which is reproduced in substance at Annexure B to the judgment.

(2)    Ofir Birenbaum breached clause 18 of the Deed by Rebekah Giles, acting on his behalf and within the scope of her retainer, communicating to Sharri Markson and/or an employee or agent of Sky News that Cairo Takeaway paid an amount of compensation to Ofir Birenbaum.

Costs

96    Ordinarily costs would follow the event. However, both parties sought to be heard on costs. I will direct the parties to confer and provide a short timetable for the provision of any further evidence and short written submissions. Whether any order as to costs can be determined on the papers, or will require a further hearing, depends on the material that is furnished.

Associate:

Dated:    30 June 2026

ANNEXED REPRODUCTION OF THE TEXT OF SIX DOCUMENTS

Judgment note about Annexure A: Briefing Note

There are two versions of the Briefing Note in evidence:

(1)    a version with the file name “DM briefing note 29.03.25” and sent to “Joseph” at the Daily Mail at 4.50 pm on 29 March 2026; and

(2)    a version with the file name “Danny briefing note” and sent to Danny Saeed at Crikey at 7.48 am on 30 March 2026.

The document reproduced at Annexure A below reflects the version sent to Crikey. The version sent to the Daily Mail differs in the following respects:

    The heading at the top of the document states “Confidential Briefing note to J S, Daily Mail”, which contrasts with the heading “Confidential Briefing note to D Saeed” in the version sent to Crikey.

    In the first bullet point, the following sentence is omitted:

The only reason it was reported as so was because of the lies of the café – ie that the DT tried to manufacture an antisemitic incident.

    In the third bullet point, the first sentence refers to “Joseph” rather than “Danny” and the following sentence is omitted:

Also see the objectively abhorrent social media posts by the Owner and the Chef (who is incidentally the brother of a senior judge of the Supreme Court). I will forward these materials to you separately.

    An additional bullet point above the reproduction of the Birenbaum Statement states:

Both Hashem and Talaat have a long history of heinous antisemitic social media activity. Talaat is the brother of NSW Supreme Court judge Dina Yehia - one of the most senior female judges in the state. See reference in Candy's article –

https://www.dailymail.co.uk/news/article-15652571/Gemma-ONeill-Jackie-O-Henderson-Georgie-Gardner-Nine.html

It is unclear whether this bullet point was included in the version sent to Crikey. The screenshots contained in Annexure SOC-1 to the affidavit of Stewart O’Connell affirmed 27 May 2026 do not show this portion of text. However, that omission may have resulted from the way the screenshots were taken.

    The title above the Birenbaum Statement states “The Statement of Ofir Birenbaum on his Instagram on Sunday 29 March” (c.f. 30 March in the version sent to Crikey).

    The second sentence in the Birenbaum Statement states “tomorrow they will issue me an unreserved public apology for the lies they spread about me” (c.f. “I have been issued an unreserved public apology for the lies they told about me” in the version sent to Crikey).

Annexure A: Briefing Note

Confidential Briefing note to D Saeed

Settlement reached in defamation case against Cairo Takeaway Newtown

Background

    This was not a stunt. It was not botched as previously reported. The only reason it was reported as so was because of the lies of the café – ie that the DT tried to manufacture an antisemitic incident.

    The cafe has previously stated that Zionists are not welcome.

https://www.dailymail.co.uk/news/article-12825857/sydney-restaurant-cairo-takeaway-instagram-rant-jews.html

    Danny is why the DT had a legitimate interest in asking whether jews were welcome at CT. Also see the objectively abhorrent social media posts by the Owner and the Chef (who is incidentally the brother of a senior judge of the Supreme Court). I will forward these materials to you separately.

    Importantly the DT had engaged in other 'observational experiments' previously and in fact many causes and minorities have been able to demonstrate discrimination through exercises like this (eg black lives matter):

https://www.dailytelegraph.com.au/my-day-under-cover-as-a-muslim-woman/news-story/e817c69d9ba66befc300b4dc03fe7707

    During the course of the day Ofir was the subject of adverse reactions and in fact abuse (one person said as Ofir passed her on the street "I cant believe there is a fucking Jew in Newtown!'').

    Ofir had been to the cafe before as he was a long-time resident of the inner city and attended it with his other middle eastern friends.

    Ofir went into the cafe that day, ordered a drink and left. He recorded his visit on his phone. The DT approached the cafe with a camera and dispute arose between the journalist and the staff.

    The cafe staff then gave interviews to Nine and other outlets FALSELY alleging that Ofir engaged in SHOCKING PROVOCATION for eg taunting them by saying shalom, shalom repeatedly, saying I feel unsafe, saying do you have a problem with me because I am Jewish, saying I hope your cafe blows up. In fact these statements were made by individuals (ie the owner and the chef) who were not actually present when Ofir ordered his drink. Further the false claims were first published by FAHAD ALI, the organiser of the Opera House protest on October 9, and went viral from there.

    These FALSE claims spread widely on social media, mainstream media causing senior politicians and public servants to condemn Ofir.

    FALSE reports of what happened were given to Police by the cafe staff.

    On 14 Feb Giles George wrote to the Cafe demanding that they retract their false statements giving an accurate record of what actually occurred. No response.

    Days later we released the video of what happened.

    Ofir's home was then RAIDED by Police - his STAR OF DAVID pendant was seized.

    No charges were ultimately pressed and we commenced proceedings for defamation against:

•    The Cafe

•    Its owner, Hesham El Masry

•    The Chef, Talaat Yehia.

See statement of claim.

    Remarkably the cafe issued a cross claim against Ofir for TRESPASS alleging that his true purpose was provoke antisemitic reactions from cafe staff and then portray them as such in the media.

    This case settled on the day that cafe was required by the Court to pay $50K into court for security for Ofir's legal costs in dealing with the cross claim.

ON RECORD STATEMENTS EMBARGOED UNTIL 9AM MON 30 MARCH

Statement of Ofir Birenbaum on his Instagram on Monday 30 March

I have been completely vindicated. After more than 400 days, my defamation proceedings against Cairo Takeaway have settled and I have been issued an unreserved public apology for the lies they told about me. Those lies were amplified by media, seized upon by politicians, and repeated by commentators who rushed to condemn - and who are now nowhere to be found.

This was never a stunt. It was legitimate public interest journalism at a time when anti-semitism in Sydney was escalating, visible, and dangerous, and heading towards more violent and hateful atrocities.

1 walked the streets of my own city as a visibly Jewish man to answer a simple question: would I be treated differently? The answer was yes. And when that truth was exposed, the response was not reflection - but ridiculous fabrication. I was lied about, vilified, and turned into a target. The consequences were real: a torrent of abuse, public condemnation, and even a police raid on my home based on false reports. Those who so confidently attacked me should now ask themselves a simple question - will they correct the record, or stay silent?

Too many chose to attack the person holding up the mirror rather than confront what it revealed. I stand by what we did, and why we did it. I thank my wife, my family and friends, and my legal team - Rebekah Giles, Scarlett de Vine, Sue Chrysanthou SC, Kieran Smark SC, and Jean-Baptiste Spahr - for ensuring the truth prevailed. This should never have happened. but it did. and now the truth is no longer up for debate and lies cannot be weaponised anymore.

Joint Statement of the Daily Telegraph, Ofir Birenbaum and Cairo Takeaway

On 11 February 2025, Jewish man, Ofir Birenbaum, who was wearing a Star of David cap and pendant, and representatives from the Daily Telegraph newspaper, entered the Cairo Takeaway in Newtown, resulting in an incident with Cairo Takeaway staff.

All parties are pleased that the legal disputes arising from this incident have now been resolved on confidential terms.

Cairo Takeaway accepts that Mr Birenbaum was polite to staff when he entered the premises and purchased a drink, and they unreservedly apologise to him for the false and defamatory statements to the media, Instagram posts and comments by members of the public directed at Mr Birenbaum on its social media accounts.

The Daily Telegraph acknowledges that entering the Cairo Takeaway without notice, to see if Mr Birenbaum would be treated differently for the purpose of a news article, caused distress to the staff and owner of the Cairo Takeaway. The Daily Telegraph unreservedly apologises to Cairo Takeaway and their staff for causing that distress.

All parties are pleased that these issues have now been resolved in a constructive and satisfactory manner. In doing so, they acknowledge that all Australians should be able to safely express their racial or religious affiliation as well as debate issues in a respectful and dignified fashion. The parties hope that the fact of a resolution can be a positive example for others.

Any republication of this joint statement is to be made in full and not in part.

***************

On record statement by Rebekah Giles, Founder of Giles George, Solicitors for Ofir Birenbaum

This is an important win for Ofir Birenbaum and the Australian Jewish community. Its vindication for Jews across the globe who have been falsely accused of staging acts of antisemitism.

How quickly our media, politicians and community leaders adopted the antisemitic trope being peddled by this Cafe and its staff and then, after the video footage of the incident was released exonerating Ofir, how quickly did the guilty parties offer up 'context' to their lies.

Public interest journalism matters - especially when it holds up a mirror to ugly sentiment and unlawful discrimination. This exercise should have been defended by all media - regardless of where they sit on the spectrum.

Whether a person is treated differently based on their physical appearance at a cafe a stone's throw from Sydney University and less than 5km from Sydney's CBD ought to be a matter of high public interest.

Full credit must go to Ofir Birenbaum for having participated in this exercise at a time of increasing antisemitism and then having the courage of his convictions to seek accountability despite the tsunami of hate, contempt and ridicule directed at him. A lesser man would have cut his losses and walked away.

Ofir Birenbaum did not have the backing of an Australian Senator or hundreds of donors to his cause. Ofir and his wife Sophie singlehandedly took on the risk associated with this litigation and prevailed. We owe him a debt of gratitude.

Annexure B: Birenbaum Statement

Statement of Ofir Birenbaum on his Instagram account on Monday 30 March 2026

I have been completely vindicated.

After more than 400 days, my defamation proceedings against Cairo Takeaway have settled and I have been issued an unreserved public apology for the lies they told about me. Those lies were amplified by media, seized upon by politicians, and repeated by commentators who rushed to condemn - and who are now nowhere to be found.

This was never a stunt. It was legitimate public interest journalism at a time when anti-semitism in Sydney was escalating, visible, and dangerous, and heading towards more violent and hateful atrocities.

I walked the streets of my own city as a visibly Jewish man to answer a simple question: would I be treated differently? The answer was yes. And when that truth was exposed, the response was not reflection - but ridiculous fabrication. I was lied about, vilified, and turned into a target. The consequences were real: a torrent of abuse, public condemnation, and even a police raid on my home based on false reports. Those who so confidently attacked me should now ask themselves a simple question - will they correct the record, or stay silent?

Too many chose to attack the person holding up the mirror rather than confront what it revealed. I stand by what we did, and why we did it. I thank my wife, my family and friends, and my legal team - Rebekah Giles, Scarlett de Vine, Sue Chrysanthou SC, Kieran Smark SC, and Jean-Baptiste Spahr - for ensuring the truth prevailed. This should never have happened, but it did, and now the truth is no longer up for debate and lies cannot be weaponised anymore.

Annexure C: Giles Statement

On record statement by Rebekah Giles, Founder of Giles George,

Solicitors for Ofir Birenbaum

This is an important win for Ofir Birenbaum and the Australian Jewish community.

Its vindication for Jews across the globe who have been falsely accused of staging 7 acts of antisemitism.

How quickly our media, politicians and community leaders adopted the antisemitic trope being peddled by this Café and its staff and then, after the video footage of the incident was released exonerating Ofir, how quickly did the guilty parties offer up ‘context’ to their lies.

Public interest journalism matters – especially when it holds up a mirror to ugly sentiment and unlawful discrimination. This exercise should have been defended by all media - regardless of where they sit on the spectrum.

Whether a person is treated differently based on their physical appearance at a café a stone’s throw from Sydney University and less than 5km from Sydney’s CBD ought to be a matter of high public interest.

Full credit must go to Ofir Birenbaum for having participated in this exercise at a time of increasing antisemitism and then having the courage of his convictions to seek accountability despite the tsunami of hate, contempt and ridicule directed at him. A lesser man would have cut his losses and walked away.

Ofir Birenbaum did not have the backing of an Australian Senator or hundreds of donors to his cause. Ofir and his wife Sophie singlehandedly took on the risk associated with this litigation and prevailed.

We owe him a debt of gratitude.

Annexure D: Joint Statement

Joint Statement of the Daily Telegraph, Ofir Birenbaum and Cairo Takeaway

On 11 February 2025, Jewish man, Ofir Birenbaum, who was wearing a Star of David cap and pendant, and representatives from the Daily Telegraph newspaper, entered the Cairo Takeaway in Newtown, resulting in an incident with Cairo Takeaway staff.

All parties are pleased that the legal disputes arising from this incident have now been resolved on confidential terms.

Cairo Takeaway accepts that Mr Birenbaum was polite to staff when he entered the premises and purchased a drink, and they unreservedly apologise to him for the false and defamatory statements to the media, Instagram posts and comments by members of the public directed at Mr Birenbaum on its social media accounts.

The Daily Telegraph acknowledges that entering the Cairo Takeaway without notice, to see if Mr Birenbaum would be treated differently for the purpose of a news article, caused distress to the staff and owner of the Cairo Takeaway. The Daily Telegraph unreservedly apologises to Cairo Takeaway and their staff for causing that distress.

All parties are pleased that these issues have now been resolved in a constructive and satisfactory manner. In doing so, they acknowledge that all Australians should be able to safely express their racial or religious affiliation as well as debate issues in a respectful and dignified fashion. The parties hope that the fact of a resolution can be a positive example for others.

Any republication of this joint statement is to be made in full and not in part.

Annexure E: Cairo Takeaway Statement

Cairo Takeaway Media Release – 30 March 2026

Cairo Takeaway disputes public statements made by Ofir Birenbaum and his lawyers in light of confidential settlement between the parties

Cairo Takeaway did not intend to make any statement about the confidential settlement of the legal dispute between them and Ofir Birenbaum & The Daily Telegraph. A joint statement had been agreed between the parties, and it was specifically agreed that nothing inconsistent with that statement would be published.

Unfortunately, it appears that Mr. Birenbaum and his lawyers have seen fit to state things that are inconsistent with that joint statement in both word and spirit. The joint statement and the statements made by Mr. Birenbaum and his lawyers is attached below.

Cairo Takeaway disputes Mr. Birenbaum's categorisation of the “Undercover Jew” operation that he engaged in with the Daily Telegraph as “legitimate public interest journalism”. It is hard to believe that the Daily Telegraph would apologise for the distress it caused to the staff and owner of the Cairo Takeaway if it currently viewed the story “as legitimate public interest journalism.”

Cairo Takeaway disputes that Mr. Birenbaum was treated differently by staff because he was Jewish. He was treated with suspicion because of a combination of: the external circumstances at the time (a tentative ceasefire between Israel and Palestine after 16 months of violence); his wearing of prominent clothing associated with the state of Israel (specifically a cap displaying a Star of David in the colours of the Israeli flag and a Star of David pendant) into a known pro-Palestine restaurant; his dark sunglasses containing covert recording equipment; his holding a carry bag with something heavy in it; and his not leaving the restaurant after ordering a takeaway drink. A short time later he was seen with a camera crew and journalist.

Mr. Birenbaum had agreed to enter Cairo Takeaway in league with the Daily Telegraph, and he knew they had a reporter and camera crew waiting outside. They all knew the Cairo Takeaway was a business that supported Palestine. That was why it had been selected for their “Undercover Jew” operation. How many Australians would genuinely believe this sort of conduct was legitimately in the public interest? Or that the persons involved should be given “full credit” and owed “a debt of gratitude”? Or that it should be described as “an important win for the Australian Jewish Community”?

It is sad that that what was meant to be a “positive example” of a “constructive and satisfactory” resolution is now attempting to be twisted. The Daily Telegraph quite properly apologised for the impact that the conduct of themselves and Mr. Birenbaum had on Cairo Takeaway staff and owner, and Cairo Takeaway quite properly apologised for the false and defamatory statements that were made in response to that conduct. The statements by Mr. Birenbaum and his lawyers are inconsistent with “the respectful and dignified” outcome that was envisaged when the joint statement was agreed to.

Please contact social@obriensolicitors.com.au or call (02) 9261 4281 for any media enquiries.

Annexure F: Sky News Segment

Sky News Segment 30 March 2026 Transcript

SM: Now, you might remember the controversial undercover sting when the Daily Telegraph took a Jewish man into a pro-Palestinian cafe to see what the reaction would be. Now, that was Cairo takeaway in Sydney's Newtown where the owner had called Zionists, pigs on social media. Now, if you only vaguely remember that here's a reminder of that story from February last year that involved the Jewish man Ofir Birenbaum.

Reporter: Tuesday afternoon and Cairo takeaway Cafe is buzzing when a man wearing a Star of David cap walks in and orders a hibiscus tea. He moves to the back of the cafe wearing glasses with a camera. He turns them on and he leaves.

SM: Well, in fact, that last bit wasn't true. Ofir wasn't wearing smart glasses. But he was recording the entire time. And so, there was a factual version of events that Ofir was able to produce.

Now, I told you in September that Ofir was suing the cafe's owners for defamation, accusing them of making inaccurate claims about his conduct during that social experiment. Well, tonight I can report that Cairo Takeaway has publicly apologised to Ofir. I also understand that they've paid him an undisclosed amount of compensation.

This was after the cafe's owner and other staff posted about the stunt prolifically on social media and their version of events was believed. This sparked a massive backlash from the media and politicians going all the way up to the home affairs minister Tony Burke. You can see his statement now on your screen.

And then Greens Senator David Shoebridge even raised money for the cafe's legal bills on his social media.

I'm David Shoebridge, Green Senator, and I'm here because Cairo Takeaway stands for something really important. It's a business that's here with the community. It's a business that represents its values and it's a business that's been standing up for Palestine.

The media was brutal, accusing the Telegraph of trying to stir up antisemitism. The overall perception was that Ofir had attempted to fabricate an antisemitic incident and had made highly provocative statements. He was the victim here. He was subject to horrific abuse as a result of the false stories. He even had his home raided by police. His star of David Pendant, his Mugu [Magen] David, was seized.

This is horrendous abuse of an innocent man. Again, it's because the cafe had been believed and not him. And it's why after defamation action by high-profile solicitor Rebecca Giles, Cairo has now apologised and paid compensation.

A statement posted to Cairo Takeaway social media today states Cairo Takeaway accepts that Mr. Birenbaum was polite to staff when he entered the premises and purchased a drink. and they unreservedly apologised to him for the false and defamatory statements to the media.

Birenbaum refused to comment on the amount of compensation paid to him other than to say he's pleased with the confidential terms of the resolution.

And Rebekah Giles said in a statement today, “This is an important win for Ofir Birenbaum and the Australian Jewish community. It's vindication for Jews across the globe who've been falsely accused of staging acts of antisemitism.

How quickly our media, politicians, and community leaders adopted the antisemitic trope being peddled by this cafe and its staff. And then after the video footage of the incident was released exonerating Ofir, how quickly did the guilty parties offer up context to their lies?”

SM: But you have to ask why the media and politicians were so quick to believe Cairo and not Ofir, especially when you look at the cafe's history. The Daily Mail reported that in response to a social media comment about a mural of a raised fist in the colours of the Palestinian flag, and I'm quoting the Daily Mail here, “the owner of a popular Sydney restaurant has told narcissistic Zionists to stay away from his venue”. In an abusive post on Instagram, Mr. El Masry wrote, "Cairo restaurant does not want narcissistic Zionist pigs like yourself coming into our restaurant. People like yourself are not welcome here and anywhere for that matter. The walls are closing in on your type. Your narrative is becoming old. F off.”

Then the chef at that cafe had posted this on June the 6th, 2024. October 7 wasn't nearly enough. And then this on June the 13th, 2024, there are no Zionist civilians.

They are all murdering lunatics. October 7 wasn’t nearly enough.

There are other examples as well. Yet they were believed and Ofir was not. There was a terrible pile on against him.

Now, as part of this settlement, the Daily Telegraph has also apologised to Cairo Takeaway for causing distress to the cafe staff.

Well, perhaps now Home Affairs Minister Tony Burke should apologize and retract his comments too. Ofir in his statement reference the comments of politicians.

This is what Ofir has said. “I have been completely vindicated. After more than 400 days my defamation proceedings against Cairo Takeaway have settled and I've been given an unreserved public apology for the lies they told about me. Those lies were amplified by media, seized upon by politicians, and repeated by commentators who rushed to condemn and who are now nowhere to be found”.

He's right. The media, commentators, politicians were quick to join the pile on, but they're missing now that Ofir’s version of events has been proven correct.