64Silvestri had worked for Mr Prodanovski on previous occasions, and was engaged to work on this project in March 2008.
65Mr Prodanovski told him he would arrange for town planners to "do the paperwork for the demolition", and that he personally would "sort out the site fence". Following a joint site inspection in March 2008, Silvestri gave Mr Prodanovski a verbal quote. In his April affidavit he deposes, in respect of that inspection (par 12):
As part of that inspection:
12.1I noted the nature of the materials used in the construction of the buildings on the site,
12.2I identified the location and the extent of the asbestos within the dwelling house and the service station on the site,
12.3I assessed the most appropriate means of removal of the asbestos and how that was to be stored pending delivery to an appropriate facility,
12.4I assessed the most appropriate means of demolition of the above ground structures after removal of asbestos,
12.5I identified those materials within the structures which could be recycled,
12.6I identified the general location of services within the site,
12.7I noted the presence of underground fuel storage tanks near the service station on the site,
12.8I observed the retaining wall east of the service station building,
12.9I observed the earthern (sic) bank/cutting behind the service station building; and
12.10I investigated the best points of access to the site for the purpose of demolition and removal of materials.
66He then formulated an order of tasks (par 6 of his February affidavit):
After reviewing the structures at the site, I decided to carry out the demolition in the following order:
A.the site fence was to be constructed
B.preliminary site works such as installation of a portable toilet and a silt fence were to be undertaken
C.asbestos within the structures was to be identified
D.the asbestos was to be hand removed
E.the house was to be demolished
F.the trees on the site were to be removed
G.the service station was to be demolished
H.the concrete slabs within the service station were to be demolished
I.work would then start on the removal of the fuel tanks.
67On 27 March 2008, he had his wife, Laura, send Prodanovski the following email:
We have inspected the site at Gipps Road Keiraville and found asbestos sheeting which will be removed in the correct manner and disposed of at Sita Waste Elizabeth Street Kemps Creek, demolition material will be disposed of at Huntley Heritage, concrete and bricks will be crushed for recycling purposes all metal scrap will go to Smorgon Steel at Unanderra. The petrol tanks if filled with water will be emptied by Thiess or Clean Away if filled with sand a geotech report will be necessary if material is found to be contaminated material will be disposed of correctly.
68He deposes (par 15 of his April affidavit) that, before demolition works commenced, he prepared the "Work Method Statement" (annexed to that affidavit as 'G'), to which Dr Swane had referred.
69Silvestri planned to start work on Friday 4 April 2008, but was told by Mr Prodanovski not to do so until the developer's paperwork was "in with the Council". He believes he eventually commenced work on asbestos removal on 17 April 2008. The preliminary work was of a kind that can be done manually, but eventually an excavator is required. The excavator was not transferred to the property until Tuesday 22 April 2008. Based upon his recollection that four working days were required to remove the asbestos, he calculates his commencement date as 17 April 2008.
70On 22 April 2008, a WorkCover officer visited the site while asbestos was being removed, but did not ask Silvestri if he held a restricted demolition licence. As requested by that officer, Silvestri attached appropriate signage to the perimeter fence.
71The demolition work required the involvement of two trucks. Silvestri owned and operated one, and the other he contracted from a Mr Petrovski, who was not required at the site until 24 April 2008, shortly after the heavier demolition work commenced. The asbestos collected from the site was wrapped and stored and was removed to a licensed facility on 23 April 2008. This was a necessary prerequisite to the commencement of machine driven demolition work. Silvestri produced documents to verify these dates.
72In pars 14ff of his February affidavit, Silvestri details the work done, and his approach to the removal of asbestos. The demolition work continued until 14 May 2008, but he was not personally working on the site every day.
73The parties are agreed (SAF 20) that the respondent did not prepare a remediation action plan prior to the demolition works and removal of the "storage tanks and associated elements". Under the supervision of GPS employees, Silvestri started work on removing the tanks on 15 May 2008. Shortly after the degassing by GPS commenced, Fuller attended the site, and work ceased in accordance with the Council stop work order he issued (SAF 21). On 16 May 2008, and under Fuller's supervision, Silvestri replaced all the spoil over the tanks and compacted it. He ceased all work and removed his equipment on 16 May 2008; he rendered an account (for $27,416.90 for the completed work) on 16 June 2008.
74He returned to the subject site in December 2010/January 2011 to remove the underground fuel tanks under the direction of Bob Bishop of Absolute Environmental Pty Ltd (February affidavit, par 34).
75Silvestri gave short oral supplementary evidence, in response to Mr Clay, largely regarding the work done at the site prior to the arrival of regulatory officials, and he was then closely cross-examined by Mr Miller. He made it clear in answer to Mr Clay that his role was works above ground, except for concrete, associated piping, and storage tanks. He had no role in the issue of soil contamination and geotechnical investigation.
76Mr Prodanovski had a clear understanding of the arrangement between his company and Silvestri, and Silvestri gave him a verbal quote, but no "scope of work" document, and engaged GPS to do the tank works under his supervision. The Council stop work order was given while the "venting works" were going on. A lot of Silvestri's work on bowsers, etc. was done manually.
77Silvestri confirmed that he was never given a copy of the DC, nor any of the documents (e.g. Douglas Partners documents) associated with the DA. He also confirmed that he had let his licence lapse, because of the high asbestos-related insurance costs involved in keeping it current. He did, however, have substantial experience demolishing service stations, and dealing with old service station sites. He had read the Demolition Standard around 2001, but "not really" since, and was familiar with the NOHSC code of practice (Exhibit C2, tab 36).
78His evidence about what was needed for compliance with the Demolition Standard was quite unsatisfactory, both in general terms, and in respect of the Prodanovski job, and whatever documentation he either prepared or obtained from others was only to deal with any inspection by WorkCover or the unions. On his own admission, he refuses to wear a safety mask, but has never been prosecuted for it, and his records are kept only in his head.
79In respect of the "Work Method Statement" (his annexure 'G'), Mr Miller's cross-examination went as follows (T13.5.11, p34, L27-p35, L46):
Q. Was it prepared by you, or was it prepared by somebody else?
A. Usually my wife helped me out, because I'm not really good writing English.
Q. Your wife wrote this?
A. Usually my wife helps me out.
Q. Helps you out, I apologise.
A. Because I'm not really good writing English.
Q. Do I take it that this is a document that sits on your computer as a standard document and you hand write in the address?
A. No, I don't think so. It gets writing different things, different material, different things get used on it, it gets writing on it.
Q. Can you remember this document being prepared?
A. Yes, I think.
Q. What bits were written into this document specifically for the purposes of this project?
A. Sorry?
Q. What bits started out as always being there, and what bits were put in this document specifically to deal with this project?
A. The hydraulic hammer, that was added, because it--
Q. Which one, sorry?
A. Hydraulic hammer.
CLAY: Hydraulic hammer.
MILLER
Q. Hydraulic hammer. I see.
A. That's right. Because not very often you use them, unless there is concrete.
Q. Right.
A. And the traffic control plan, if it's required.
Q. Traffic control plan if it's required.
A. That's right.
Q. What page are you reading that from?
HIS HONOUR: Halfway down the first page, under Risk Factors. Is that what it is?
MILLER
Q. That's all. The rest is a standard document?
A. More or less, yes.
Q. And those are the two bits that are put in for this project, is that right?
A. That's exactly right, yes.
Q. And it said on the second page, and this is a document you keep to show WorkCover if they turn up, is that right, Mr Silvestri?
A. You're talking about the second page. Can I have a look at it?
Q. No, just - I'm sorry - this is a document you keep to show WorkCover if they turn up?
A. Normally WorkCover never ask about this. Mainly it's union if they call on site, because they want to keep updated if you've got your machinery in proper working order, and to avoid problem with them, I usually keep this record for them.
Q. To deal with the union?
A. Because union, yeah, unions cause more headaches than anybody else.
Q. So this is a document prepared for--
A. For WorkCover and for the union.
80Later, the following exchanges occurred. At Tp36, LL30-4:
Q. So is this written so as to keep the union or WorkCover happy, but with full knowledge that you never intended to follow it?
A. It's written down because it's a standard thing, but I never wear it. WorkCover always come on site, always catch me without mask. Never did wear a mask in all my life since union came, or WorkCover came around.
and, Tp37, LL35-37:
Q. Did you give a copy of that document to anyone that you understood was working for Mr Prodanovski on this project?
A. When WorkCover called around, they saw the document...