Mr Maletic was now working with another builder in the position of site manager on a project involving the construction of a 160-room hotel, commercial office space and mixed use retail development. He had been employed by SB&D between August 2001 and January 2004 initially as a foreman/supervisor and, later in early 2003, as project manager. In that position he was directly responsible to Mr Sebastian and reported to him daily. He described his responsibilities as the day-to-day determination of priorities of tasks to be undertaken. Mr Sebastian had the overall discretion to direct him and to change the job scheduling. When working at the Smith Street project, he held the trade qualification as a carpenter and joiner (obtained in 1990), a dogman's ticket, a forklift licence, an elevated platform and a bobcat licence: all of these were WorkCover accredited qualifications. Mr Maletic said he had no qualification, however, in dismantling the self-erecting tower crane used at the site.
13 Mr Maletic had reviewed his actions in relation to the dismantling of the crane in August 2003 and accepted completely that he was negligent in being involved in undertaking that task. He pointed out that he was at all times under the direction of Mr Sebastian but in no way sought to minimise his responsibility or his liability. He expressed his sincere regret for his negligence and that it had created a risk to the safety of the members of the public and his work colleagues. His realisation of what might have occurred in this incident caused him great stress and anxiety.
14 During the Smith Street project, Mr Maletic said it became apparent that the work required a tower crane of some description rather than a mobile crane: this was discussed with Mr Sebastian in approximately October 2002. Stage 1 of the development had then been completed and Mr Sebastian agreed that Stage 2 would require a tower crane. As co-director of Franco Crane, Mr Sebastian spoke with the other co-owner, Frank Vellar, and discussed purchasing a tower crane suitable for the job. In approximately December 2002, Mr Sebastian travelled to Spain and purchased the crane that was ultimately involved in the incident. The tower crane was imported into Australia in early February 2003, being delivered to a holding yard at Port Kembla. It was inspected by Mr Maletic, Mr Vellar and Franco Sebastian. The crane was delivered to the site, to be assembled there and Mr Maletic discussed that task with Mr Sebastian. Mr Sebastian stated that he had been shown how to assemble the crane when in Spain: it was easy and the two of them could perform the task. Mr Sebastian said he had the instruction book for the crane.
15 On 21 February 2003, Francisco Sebastian, with Mr Maletic's assistance, erected the crane. Mr Sebastian used the manual provided, which was written in Spanish, his native language. Mr Maletic understood that the manual also contained instructions for dismantling the crane. Mr Sebastian erected this crane with the assistance of a mobile crane from Franco Crane which was used to lift the light counterweights into position. Mr Maletic stated that at all times Mr Sebastian directed the total operation of the erection of the self-erecting tower crane. The task was concluded without mishap.
16 Once the new crane was on site, Mr Maletic said he was faced with the problem that he had not seen such a crane before, it was new to the industry, and he needed to know who was qualified to drive and operate it. He contacted WorkCover inspectors at Wollongong, Nowra and Gosford branches shortly after February 2003 in an attempt to ascertain the necessary qualifications and requirements. None of the inspectors could assist in answering his enquiries because the crane was new to the market. Mr Maletic said he knew each of the inspectors personally and held them in high esteem but, like the market, they were not informed about this new device. Mr Leavy's Position Paper dated August 2002 provided no information as to the qualifications required to dismantle the crane. Prior to the collapse of the crane, the only guidance available in relation to the operation of the crane was from Mr Sebastian along with the manual written in Spanish. The English version of that manual was only received by Mr Sebastian on the day that the crane collapsed. Mr Leavy's document dealing with the interim requirements for operating self-erecting tower cranes was written in December 2003, some four months after the incident.
17 It was noted by Mr Maletic that, before the crane was erected, there were negotiations between SB&D and Franco Crane for Franco Crane to provide a crane on site together with a qualified operator for the duration of the job. Mr Bond was engaged as the qualified operator and Mr Maletic believed he was qualified to undertake the task of dismantling the crane: he thought that there were other Franco Crane employees also qualified for that task. Shortly after the crane was erected, Mr Maletic contacted Mr Vellar to enquire as to the relevant WorkCover requirements for its operation. In those discussions, Mr Maletic requested Mr Vellar to provide safe work method statements, a job safety analysis and a risk assessment, but they were not provided. Franco Crane was to provide signage, which Mr Maletic purchased on behalf of SB&D, and Mr Vellar asked him to liaise with WorkCover in relation to the crane. Mr Maletic then contacted Mr Leavy of the Gosford office of WorkCover and arranged for the appropriate registration forms to be sent to Franco Hire. Prior to dismantling the crane, Mr Maletic said there were two incidents involving the crane which he believed required notification to WorkCover: he made these reports immediately in each case and also informed Mr Sebastian of those notifications.
18 In early March 2003, WorkCover inspectors visited the Smith Street site and issued improvement notices in relation to the crane, requiring it to be fitted with a load indicator. Mr Sebastian ordered the required parts from the Spanish manufacturers in May 2003 after he had sought quotes from local competent suppliers - those quotes were rejected by Mr Sebastian as being too expensive. In approximately mid-July 2003, Mr Sebastian told Mr Maletic that the components had arrived in Australia and would be stored at Customs before release, a period of approximately two weeks.
19 Mr Maletic discussed with Mr Vellar the task of retro fitting the components to the crane: Mr Vellar suggested, and he agreed, that the best course was to engage experts for the dismantling task, to fit the components and recommission the crane on completion. Mr Vellar asked him to make those arrangements. Mr Maletic contacted Atlas Electrical Pty Ltd (Atlas) and spoke to Mr Hanlin, a director, approximately one week before the collapse of the crane. Mr Hanlin was asked to undertake the complete task in relation to the crane and they discussed the rates and resources for that task to be undertaken on 2 August 2003. Mr Maletic informed Mr Vellar of those arrangements with Atlas and, shortly thereafter, Mr Vellar agreed with those arrangements. Mr Maletic then prepared a JSA dated 2 August 2003. The JSA bore that date because it was the date the work was to be performed by Atlas. The JSAs covered the complete task of dismantling the crane, retro fitting the parts and recommissioning the crane.
20 At approximately 7.00 am on 1 August 2003, Mr Maletic had received the required parts to be fitted to the crane when Francisco Sebastian arrived at the office. Mr Maletic informed him that Atlas was to perform the complete retro fit after the matter had been discussed with Mr Vellar, but Francisco Sebastian was not happy with those arrangements because of the cost of Atlas doing the job. Mr Maletic told him that he did not know how to do the task, that Mr Sebastian was too busy, while Atlas knew what it was doing and also told him that Mr Vellar had agreed and had asked Mr Maletic to arrange for Atlas to do the total job. Mr Sebastian then said that they would do the job themselves and told Mr Maletic to organise a crane to come to Smith Street to remove the light counterweights from the crane. Francisco Sebastian said he had to attend a meeting but that he would return at lunchtime when they would dismantle the crane themselves. Mr Maletic asked him to leave that task to Atlas because it was already booked and ready to dismantle it the following day, but Mr Sebastian said he did not want to pay penalty rates for Atlas to do a simple job they could do themselves. Mr Maletic responded that Mr Sebastian was the boss and it was up to him. He then made arrangements for a mobile crane from Franco Crane to attend the site to remove the light counterweights as Mr Sebastian had required. Mr Maletic spoke to Mr Mulholland, the crane co-ordinator for Franco Hire, who told him that a crane would be on site between 9.30 am and 10.00 am that morning. No other procedure was mentioned. Mr Maletic then spoke to Mr Hanlin at Atlas to inform him that Mr Sebastian had altered the arrangements for Atlas to dismantle the crane, that Mr Sebastian would now do that himself and Atlas was to complete only the retro fitting along with the recommissioning and testing on Saturday, 2 August 2003. At that point, the position was that the crane would be dismantled on Friday, 1 August 2003 when Mr Sebastian returned to the site, be left in a dismantled position for Atlas to retro fit and test the crane on Saturday, 2 August 2003. No transportation was ever contemplated.
21 At approximately 10.00 am on Friday, 1 August 2003 a mobile crane driven by Mr Ackerman arrived at the site from Franco Hire. Mr Ackerman did not provide a dismantling procedure. At approximately 9.30 am Mr Maletic telephoned Mr Dugandzija and asked him to bring detour signs and witches hats to the site to control traffic around the site. Mr Dugandzija was asked to be present at the site at approximately 12 noon when it was expected Mr Sebastian would return to the site. Mr Maletic then advised all site personnel that the crane was being dismantled that afternoon and they should all leave the site after lunch. Only three people remained on site: Mr Maletic, Mr Leggett and Mr Dugandzija who arrived at approximately 1.00 pm. Mr Maletic helped Mr Dugandzija unload the signage and witches hats and saw him place them at the southern side of Keira Lane, approximately 20 metres south of the entry gate to the site. There was a carpark opposite the site and the placement of the signage and witches hats permitted cars entering the lane to enter the carpark at the southern entry, travel through the carpark and exit via the northern entry thereby avoiding the site. At the northern exit of the lane, approximately two metres from the site entry, detour signs and witches hats were placed allowing north bound traffic to exit the carpark and the general parking area.
22 In relation to the tower crane, as directed by Mr Sebastian, Mr Maletic acted as a dogman for Mr Ackerman when removing the light counterweights from the tower crane: this task was completed by approximately 10.30 am. Mr Sebastian returned to the site at approximately 2.00 pm with a copy of the crane manual written in English. The English manual had arrived with the parts on 1 August 2003. Mr Sebastian read the manual and directed Mr Maletic in the task of dismantling the crane. Mr Sebastian told him to take the controls of the crane and that he would read the manual to him and would tell Mr Maletic what to do next. This process was followed and the crane collapsed. Mr Maletic rejected any suggestion that Mr Sebastian was not fluent in reading English but noted that the Spanish version of the manual was not on site that day.
23 Mr Maletic saw Mr Maher enter Keira Lane before the collapse of the crane and park next to a skip bin. Mr Maletic said that Mr Maher had driven contrary to a one-way sign - his understanding from a traffic management plan was that the lane was a one-way street. After the collapse of the crane, WorkCover attended the site and ultimately gave approval for the removal of the crane. Mr Maletic again stated "without reservation" that he acknowledged he did not have the qualifications to be involved in the dismantling process and that he had no experience with such crane operations. He stated that he was still "sick to his stomach" at the thought that someone might have been injured and, as a result of the accident, he was in a "daze" for a long period of time. He stated that it hurt him that somebody might have been injured, yet it could have been easily avoided and that he should have been more insistent that Atlas perform the work. He sincerely regretted that he was not more responsible in relation to that matter. He also noted that Franco Crane had a group of qualified operators who were capable of controlling the dismantling process and he should have insisted that Mr Sebastian engage one of the competent drivers from Franco Crane to perform the task.
24 Mr Maletic stated that he was determined to see that the accident was examined and procedures implemented to prevent it happening again under his supervision. He brought about the engagement of National Safety Management Pty Ltd to review and advise on the implementation and development of a safety plan for SB&D and published that plan to all the supervisors, employees and management of SB&D. He then reviewed the site plans on a monthly basis. Since the accident, he had undertaken a detailed course with the Department of Commerce relating to the writing and implementation of safe work method statements. He had also participated with his present employer in an accreditation process resulting in the company being one of the few fully accredited in Australia by the Office of the Federal Safety Commission.
25 An affidavit from Mr Hanlin stated that he was a director of Atlas and confirmed the arrangement made with Mr Maletic for a crew to attend the tower crane at the site on 2 August 2003. Mr Hanlin said that he had been engaged through Mr Maletic to be responsible for the decommissioning of the crane, changing the necessary components to enable installation of a digital load indicator, to recommission the crane and to recalibrate the unit. On the day before this task was to be undertaken, Mr Maletic informed him that Mr Sebastian did not want Atlas to decommission the crane and that would now occur prior to the arrival of Atlas on Saturday, 2 August 2003. Several hours later, he was informed by Mr Maletic that the 2 August 2003 plans were cancelled because the crane had collapsed.
26 At the time of the incident, Mr Dugandzija had been employed by SB&D for approximately two years as a labourer/truck driver holding a dogman's certificate. He was a mechanic by trade. He was on site at the time of the collapse of the crane but he was not aware of the work method statement describing the safety precautions to be taken to assemble, operate and dismantle the self-erecting tower crane. He said he was not involved in that part of the operation. Mr Maletic had asked him to make sure that no one was around the site, however, when he arrived at the site, there were very few employees present. He placed detour signs at both ends of the lane near the carpark and had "a look around". He noted that the carpark was not full. A few days prior to the incident, Mr Maletic had told him that there would not be anybody around because the crane was being decommissioned. At the time of the incident there was some wind, "like a breeze", which were the conditions at approximately the time that the crane collapsed.