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

THE QUEEN

SCHERGER AND OTHERS

Ex PARTE BRIDEKIRK. Defence-Air Force-Airmen-Application for discharge from service-Refusal by

Air Board-Irregular enlistment-Mandamus directed to Air Board to compel discharge-Whether mandamus appropriate remedy-Enlistment validated by SYDNEY,

subsequent regulation-Refusal of remedy-Air Force Regulations 1927-1952, Dec. 10, 11,

Pt. IV, regs. 91, 92 (1) (5), 93, 94, 95, 99 (2)-Air Force Act 1923-1956, 88, 3 (3), 9-Defence Act 1903-1956, 8. 124.

Paragraph (5) of reg. 92 of the Air Force Regulations 1927-1952 provides :- " (5) A person who, prior to the commencement of this regulation, has engaged to serve for one of the periods specified in this regulation shall be bound to serve in the Air Force in accordance with the tenor of his oath of enlistment until he is discharged, dismissed or removed from the Air Force."

Held, that the paragraph suffices to overcome all irregularities in the enlist- ment voluntarily made of a person falling within its description.

In 1950 B., then aged sixteen years eight months, enlisted in the R.A.A.F. for a term of not less than three and not more than four years as an airman apprentice and for twelve years thereafter unless sooner discharged, dismissed or removed. B.'s enlistment was inconsistent with the provisions of the Air Force Regulations then obtaining in that he was under the age of eighteen years and had enlisted for a period longer than six years. In 1952 a new reg. 92 was adopted, par. (5) whereof is hereinbefore set out. The period of B.'s enlistment was one of the periods specified in such new regulation. Sub- sequently B. applied to the Air Board for his discharge pursuant to reg. 99 (2) upon the basis that he was not duly enlisted but the board relying upon reg. 92 (5) declined the application. B. sought a writ of mandamus directed to the members of the board to compel his discharge.

99 CLR 497

Held, that by virtue of reg. 92 (5) B. was not entitled under reg. 99 (2) to claim that he had not been duly enlisted and accordingly his application should

Quaere whether, in any event, mandamus would have lain against the members of the Air Board. MANDAMUS.

On 6th November 1957 McTiernan J. on the application of John Richard Russell Bridekirk, a leading aircraftsman in the Royal Australian Air Force stationed at Richmond, New South Wales, as prosecutor, granted an order nisi directed to Frederick Rudolph William Scherger, Allan Leslie Walters, Ellis Charles Wackett, Henry George Acton, Reginald Max Rechner and Archi- bald Bertram McFarlane, members of the Air Board constituted under the Air Force Regulations made pursuant to the Air Force Act 1923-1956, calling upon the respondents to show cause before the Full Court of the High Court why a writ of mandamus should not issue directed to the said respondents commanding them to discharge the prosecutor from service in the Air Force of the Commonwealth of Australia upon the grounds that the prosecutor was not duly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Scherger; Ex parte

Details

AGLC: R v Scherger; Ex parte [1957] HCA 94
Case: [1957] HCA 94
Decision Date: 19 December 1957

CaseChat Overview and Summary

This case concerned an application for a writ of mandamus by John Richard Russell Bridekirk, a leading aircraftsman in the Royal Australian Air Force, against the members of the Air Board. Bridekirk sought to be discharged from service on the grounds that his enlistment in 1950 was irregular, as he was under eighteen years of age and had enlisted for a period exceeding six years, contrary to the Air Force Regulations then in force. The Air Board refused his discharge application, relying on a subsequent amendment to the regulations.

The primary legal issue before the High Court was whether Bridekirk was entitled to a discharge under Regulation 99(2) of the Air Force Regulations, which permitted discharge for persons not duly enlisted, or whether a later amendment, Regulation 92(5), validated his enlistment and bound him to serve. The Court also considered, obiter, whether mandamus was an appropriate remedy against the members of the Air Board in this context.

The Court reasoned that Regulation 92(5), introduced in 1952, had a retrospective and validating effect. It provided that any person who, prior to its commencement, had engaged to serve for a period specified in the regulation would be bound to serve in accordance with their oath of enlistment. The Court found that Bridekirk's enlistment, despite its initial irregularities concerning age and duration, constituted a de facto engagement to serve for a period specified in the new regulation. Therefore, Regulation 92(5) operated to overcome these irregularities and prevent him from claiming he was not duly enlisted under Regulation 99(2). The Court also considered whether the regulation-making power was sufficient to support Regulation 92(5), concluding that the powers to regulate enlistment were broad enough to validate de facto enlistments.

Consequently, the High Court held that Bridekirk was not entitled to claim discharge under Regulation 99(2) because his enlistment was validated by Regulation 92(5). The order nisi for mandamus was discharged.

Orders