17 Counsel for the respondent invited us not to follow Serbec and Elizabeth Valley, but to hold instead that the question of whether a vehicle "is used on a highway" within the meaning of the definition should be decided on the basis of the Newton test of whether the vehicle was being "used on the highway" at the time of the accident. But I am not disposed to accept that invitation. Whatever difficulties attend the application of Serbec test, there are at least as many attaching to the application of the Newton test, and moreover and perhaps more importantly, it is now thirteen years since Serbec was decided and it has since been approved by the Full Court in Siciliano[9] and by this court in Ball[10].
18 So far as we know, and counsel for the respondent has confirmed that it is so, the respondent has never before since Serbec contended that Serbec was wrong, and in the thirteen years in which the respondent has been prepared to abide it, numerous cases have been processed and decided on the basis of it. In those circumstances, in my view, it is just too late in the day for this court, comprised as it now is, to change the status quo. For better or worse, the law is that the question of whether a vehicle is "used on a highway" within the meaning of s.3 of the Act, is not to be decided simply on the basis of whether the vehicle was being used on the highway at the time of the accident. If there is to be a change to that, it will have to come from Parliament.
19 Consequently, isolated use on a single occasion will ordinarily be insufficient to satisfy the test. The question is ordinarily to be decided on the basis of whether the vehicle is normally or repeatedly used on a highway. It follows, in my opinion, that the judge below erred in law, and accordingly that the appeal should be allowed.
20 The question then is whether we should remit the matter to the judge below for further hearing or decide the matter ourselves. In the event, however, both sides have urged us to adopt the latter course on the basis, it is said, that we are in just as good a position as the trial judge to decide the matter, and that it is more expeditious and efficient for all concerned if the matter is finally disposed of now. I am prepared therefore to adopt that course.
21 Counsel for the respondent submitted that there is no, or at least insufficient, evidence on which to base a finding that the bulldozer was normally or repeatedly used on a highway. It is true, he conceded, that the judge below found that the bulldozer was driven, or "walked" as it was called, along "C" class roads from one coupe to another not more than four times per year, but in his submission that does not mean, nor is there basis to find, that the bulldozer was moved four times a year or indeed any other number of times per year along the "C" class roads. Counsel contended that so far as the evidence goes, the most that could be said is that there is "occasional or isolated use", which on any analysis is insufficient for the purposes of the test.
22 I do not agree. To begin with, in a letter dated 19 February 2002, from Mr Ron Schrader, a director of Schrader Pty Ltd, to the senior litigation officer of the respondent, it was said, amongst other things, "The bulldozer and all other logging machinery is moved from coupe to coupe by driving through the bush or along the side of the logging tracks as it is illegal to drive them on the forest roads. Where the destination is of any great distance, the machinery is floated on a low-loader".
23 Next, in the evidence given by Rodney Alan Walker, who was a forester working in the area at the relevant time, it was said that there is sometimes in conjunction with the contractors and the department, an upgrade of a road on the way to a coupe, so that means that they might push trees over and widen it out so as to get better access, and that in moving from one coupe to another, the bulldozer would either be "walked" along the side of the road if the distance were less than five kilometres or, if it were greater, would be taken by low-loader. Those practices, he said, were acceptable to the Forest Department and had been implemented with the approval of the senior forester in that district. According to Mr Walker, there was also an established practice, that had been worked out in conjunction with the Department, of placing a four-wheel drive vehicle in front of, if not also behind, a bulldozer as it was so "walked" along the "C" class road.
24 Another witness, Mr Gary Robert Featherstone, said, or at least confirmed, that he had seen bulldozers travelling on public roads between coupes in the Wilkinson area of the Nuniyong Forest, and confirmed also evidence given by another witness of occasions when logging bulldozers might be moved from one coupe to another when the distance was less than five kilometres between them.
25 Cross-examined, he said, "Yes, it is. In my statement I said ten kilometres. There's no hard and fast rule. It depends upon availability, floats, the preferences of the contractors, the ability - the speed that the dozer can walk, the condition the dozer is in. So it would vary. Generally we had a preference for the bulldozers not to walk directly through the bush. I'm sure that it probably did happen on occasions."
26 Pressed further, he said that "My recollection is that we had an instance where a road was actually damaged by a bulldozer walking on it and we then asked the contractors to notify us and get permission before walking on it and we then asked the contractors to notify us and get permission before walking on any roads. I understand that those rules were applied rigorously when they were first brought in, but then progressively relaxed. A number of contractors - often it was impractical for them to contact us in time and it really depended on the class of the road. If it was a minor track quite often they would do it and then seek permission afterwards. It was probably not a formal permission as well as - probably as much as a notification."
27 It is true, as counsel for the respondent pointed out, that in the course of cross-examination Mr Featherstone conceded, or at least acceded to the proposition, that such use of the bulldozers on "C" class roads by "walking" from one coupe to another was "isolated and limited uses", but I do not regard that as determinative or, amongst the totality of the evidence, particularly significant. To begin with, the characterisation of the frequency of the use cannot take the matter any further than the direct evidence as to frequency of use.
28 In the second place, it appears to me apparent from the totality of the evidence that Mr Featherstone's characterisation of the use of the bulldozers on the "C" class roads was confined to the one aspect of that use.
29 In the third place, Mr Featherstone also said that a contractor might harvest somewhere between six and ten coupes a year, so "We'd only have to move six or ten times a year."
30 Counsel for the respondent submitted that Mr Featherstone's statement should not be regarded as evidence that there were at least six to ten uses of the "C" class road by the bulldozer each year. In counsel's submission, the statement was open to more than one interpretation and there was evidence given by Mr Walker which suggested that the user was less. That may be so. But it is significant that what was said to be the contrary evidence given by Mr Walker was not put to Mr Featherstone in the course of his cross-examination. I am therefore inclined to draw the inference, consistently with what was said by the Court of Appeal in New South Wales in Commercial Union Assurance Co of Australia Ltd v. Ferrcom Pty Ltd[11], that anything Mr Featherstone might have said in response would not have been favourable to the respondent.
31 Most importantly perhaps, there is the evidence of Mr Schrader, to whom I have already referred. In the course of his cross-examination by counsel for the appellant, he was asked these questions and gave these answers: