R v Scherger; Ex parte

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.