In response to the claims received from the developer, several steps were taken to determine the potential exposure to risk and minimise the cost of settlement, including:
• engaging independent experts to assess the potential legal, commercial and financial risk exposures associated with the claims
• establishing an interdepartmental committee to oversee negotiations with the developer and concessionaire. The committee comprised representatives of the SCSA and the DTF, Department of Premier and Cabinet (DPC) and DOI
• setting up a senior strategy committee to investigate the veracity of the claims and make recommendations to the interdepartmental committee. The senior strategy committee comprised representatives from the SCSA, DOI and independent expert advisors
• appointing a high-level negotiating team to conduct negotiations.
Government required certain settlement terms and set maximum contributions to be made by the State. Government was kept informed on the progress of negotiations and ensured that negotiations were conducted within the set parameters.
Prior to finalising the agreement, the SCSA appointed an independent commercial mediator to assess the proposed settlement and certify whether:
• the process to negotiate a settlement was properly informed and rigorous
• the analysis of the proposed settlement and the amount to be contributed by the State was consistent with the SCSA's assessment of the State's potential commercial and legal risk, and adequately addressed that risk.
The SCSA engaged a Queen's Counsel (QC) experienced in the construction industry and dispute resolution to provide certification on the settlement. The QC concluded that: "The settlement agreement was the best possible commercial settlement that was able to be negotiated following a lengthy and vigorous process of commercial negotiations".