R v Scherger; Ex parte Bridekirk [1957] HCA 94

R v Scherger; Ex parte Bridekirk [1957] HCA 94

Sub-reg. (5) of reg. 92, as introduced by S.R. No. 14 of 1952, validates the applicant’s prior enlistment despite irregularities, and therefore, the applicant was not at the relevant time a person 'not duly enlisted', precluding entitlement to discharge under reg. 99(2).

Jurisdiction
Australia
Procedural Posture
Order Nisi for Prerogative Writ of Mandamus / Determination on Whether to Make the Order Absolute or Discharge It
Outcome
order nisi for mandamus discharged, with costs to be paid by the prosecutor
Legal Topics
['prerogative Writs' 'mandamus' 'enlistment in Armed Forces' 'validity of Military Regulations']
['administrative Law' 'military Law'] ['prerogative Writs' 'mandamus' 'enlistment in Armed Forces' 'validity of Military Regulations']

Case Brief

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Procedural Posture

Order Nisi for Prerogative Writ of Mandamus / Determination on Whether to Make the Order Absolute or Discharge It

Legal Issues

  1. 1 ['Whether the applicant was duly enlisted in the Air Force in 1950.' "Whether sub-reg. (5) of reg. 92 validly operated to cure defects in the applicant's enlistment." 'Whether the Air Board had a public duty enforceable by mandamus under reg. 99 (2).']

Ratio Decidendi

Sub-reg. (5) of reg. 92, as introduced by S.R. No. 14 of 1952, validates the applicant’s prior enlistment despite irregularities, and therefore, the applicant was not at the relevant time a person 'not duly enlisted', precluding entitlement to discharge under reg. 99(2).

Court Disposition

order nisi for mandamus discharged, with costs to be paid by the prosecutor

Orders

  • ['Order nisi for mandamus discharged' 'Costs to be paid by the prosecutor']