Fabricated vindication

Law shop moved into the PR business ... Evolution of reputation panel beaters into client flack merchants ... Spruiking vindication ... What vindication? ... Deed of settlement breached ... Unimpressive witness ... Outsized puffery from prominent solicitor ... Case note from Stephen Murray at the Gazette of Law & Journalism

Jewish activist Ofir Birenbaum – with Senator Dave Sharma (Lib NSW) in the background

The Federal Court has ruled that a pro-Israel advocate breached a deed of settlement reached in a defamation action against a Sydney café owner when subsequent media statements were issued, claiming he had been vindicated in his action against the café.

In reaching that conclusion, Justice Robert Bromwich was critical of the conduct of Ofir Birenbaum and his solicitor, Rebekah Giles, in putting the settlement at risk by preparing and issuing the statements.

Birenbaum sued the owners and operators of Sydney café Cairo Takeaway for defamation after an effort by him in association with the Daily Telegraph to expose rising anti-Semitism and its effects on Jewish people in Sydney misfired.

Birenbaum pleaded a social media post by the café conveyed imputations that he made baseless accusations of anti-Semitism against staff and had sought to stir up controversy.

Cairo Takeaway commenced its own proceedings in trespass.

As a trial in May loomed, the parties settled in late March, with the Daily Telegraph publishing a joint statement.

The statement contained an apology from Cairo Takeaway to Birenbaum for statements it made to the media and on social media, and there was an acknowledgement and apology from the Daily Telegraph for the distress caused to the staff and owner of the café.

On publication of the statement, Birenbaum used an Instagram post to claim complete vindication, and that the exercise was no stunt but instead “legitimate public interest journalism”.

Birenbaum’s lawyer, Giles of Giles George, issued a separate statement, saying the outcome was an important win for Birenbaum and the Australian Jewish community, and amounted to vindication for Jews “across the globe who have been falsely accused of staging acts of antisemitism.”

Responding to the statements made by Birenbaum and Giles, O’Brien Criminal & Civil Solicitors, lawyers for Cairo Takeaway, issued their own statement, saying:

“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.”

Cairo Takeaway sought declarations that Birenbaum had breached the deed of settlement, by which the parties agreed not to make or procure or endorse the making of any statement inconsistent with the joint statement, or alternatively, a declaration that Birenbaum had disclosed terms of the deed.

Joint Statement

In a judgment delivered on June 30, Justice Robert Bromwich observed that the settlement was a prudent course of action, given the potential reputational risk for both parties in the dispute, and the substantial risk that the costs of the litigation would “far exceed the fruits of a successful verdict” for Birenbaum, let alone if his case failed.

Justice Bromwich said he became aware of the statement by Birenbaum and Giles through media reports, saying:

“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.”

Justice Bromwich said:

“The Joint Statement reflected a sensible and mature outcome, by way of a genuine compromise, in the best interests of all concerned.”

He added:

“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).”

Subsequent media statements

Justice Bromwich had regard to a briefing note, intended as background to the settlement and joint statement, provided to the Daily Mail and Crikey ahead of the publication of the joint statement. He said:

“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.”

Addressing whether he should make a declaration that Birenbaum had disclosed terms from the deed of settlement, Justice Bromwich said this would have necessitated disclosure of its terms, which were otherwise confidential.

He said this would be undesirable in that it would discourage the settlement of current and future proceedings, and while it would strengthen his reasons for the conclusions he reached, it would undermine the objective of encouraging settlements.

Finding the Birenbaum and Giles statements to be inconsistent with the joint statement, Justice Bromwich said:

“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.”

Giles: “a key implementer” in undermining the settlement agreement

Sky News report of compensation

The respondents also sought a declaration that Birenbaum breached the deed by making representations to Sharri Markson of Sky News that he had been paid compensation as part of the settlement.

Birenbaum initially denied having any contact with anyone at Sky News. However, documents showed he had contact with Markson and another journalist, Caroline Marcus. He attributed the error to a faulty memory.

Justice Bromwich had cause to observe:

“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.”

Accepting Birenbaum’s denial that he had raised the matter of compensation with Markson, Justice Bromwich said the only logical and plausible person was, in his view, Giles. He said:

“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.”

Declining to go as far as to make findings that the information about compensation breached the clause concerning divulging terms of the settlement, Justice Bromwich was satisfied that a reference to the payment of compensation from one party to another was inconsistent with the Joint Statement saying that the terms of the settlement were confidential.

Statements made on instruction or per retainer?

Justice Bromwich considered whether it was necessary to have the declarations framed to say that Birenbaum procured Giles to publish the relevant statements. He said the question was whether Giles prepared and distributed the statements on her own behalf, or within the scope of her retainer with Birenbaum and on his behalf.

Justice Bromwich said he did not consider the term “procuring” to be essential to the substance of the respondents’ case and the relief they sought. He said:

“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.”

His Honour was not persuaded that he should not exercise his discretion to make the declarations. He observed the statements were still on Birenbaum’s social media accounts until recently, and had been amplified by coordination with other social media accounts.

Justice Bromwich said settlement of proceedings, in whole or in part, is central, in the most practical way, to the proper administration of justice. He said:

“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.”

The parties will be heard on costs.