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

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

Regulation 92(5) validated the prosecutor's prior irregular enlistment, binding him to serve the period in his oath; therefore, he was not a person 'not duly enlisted' under reg. 99(2), and was not entitled to discharge on that basis. His application for mandamus fails.

Parties
Respondent: The Queen; Respondents: Frederick Rudolph William Scherger, Allan Leslie Walters, Ellis Charles Wackett, Henry George Acton, Reginald Max Rechner, Archibald Bertram McFarlane (Members of the Air Board); Prosecutor: John Richard Russell Bridekirk
Jurisdiction
Australia
Procedural Posture
Application for Mandamus / Order Nisi and Substantive Decision by High Court
Outcome
Application refused; order nisi for mandamus discharged; costs to be paid by prosecutor.
Legal Topics
Mandamus, Enlistment Irregularity, Validation of Irregular Enlistment, Air Force Regulations
Administrative Law Military Law Mandamus Enlistment Irregularity Validation of Irregular Enlistment Air Force Regulations

Case Brief

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Parties

The Queen

Respondent

Frederick Rudolph William Scherger, Allan Leslie Walters, Ellis Charles Wackett, Henry George Acton, Reginald Max Rechner, Archibald Bertram McFarlane (Members of the Air Board)

Respondents

John Richard Russell Bridekirk

Prosecutor

Procedural Posture

Application for Mandamus / Order Nisi and Substantive Decision by High Court

Legal Issues

  1. 1 Whether the prosecutor's enlistment in the Air Force was irregular due to being underage and excess period of engagement
  2. 2 Whether subsequent regulation (reg. 92(5)) validated the initial irregular enlistment
  3. 3 Whether mandamus is the appropriate remedy against members of the Air Board

Ratio Decidendi

Regulation 92(5) validated the prosecutor's prior irregular enlistment, binding him to serve the period in his oath; therefore, he was not a person 'not duly enlisted' under reg. 99(2), and was not entitled to discharge on that basis. His application for mandamus fails.

Court Disposition

Application refused; order nisi for mandamus discharged; costs to be paid by prosecutor.

Orders

  • Order nisi discharged
  • Costs ordered against John Richard Russell Bridekirk