Advisory jurisdiction limits: questions based on assumed facts not found in tribunal orders must be declined.

Advisory jurisdiction is confined to questions of law that genuinely arise from an appellate tribunal's findings; where a reference assumes attendant factual circumstances not determined by the tribunal, the court should decline to answer those questions. The tribunal had expressly found the transaction to be a sale based on documentary covenants and did not decide extraneous factual matters such as removal timing, adequacy of consideration, or tapping potential; consequently the High Court erred in answering a question predicated on assumed facts. The High Court's answer to Question No. 3 is therefore set aside and the appeal allowed.

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Issues: Whether Question No. 3 referred to the High Court arose out of the order of the Appellate Tribunal and was therefore answerable by the High Court.

Analysis: The Court examined the scope of the High Court's advisory jurisdiction to answer questions referred by the Commissioner which must be confined to questions of law arising out of the Tribunal's order. The Appellate Tribunal had found, on the express terms of the agreement, that the parties had effected a sale of trees and that the covenants represented a genuine bargain; it did not make findings of attendant extraneous facts such as unreasonableness of time for removal, inadequacy of consideration, or continued tapping potential. The High Court's third question assumed the existence of such attendant circumstances which were not determined by the Tribunal and thereby raised issues beyond the legal questions flowing from the Tribunal's findings. The Court held that where the facts assumed in a reference are not founded on findings in the Tribunal's order, the High Court should decline to answer questions that do not legitimately arise from that order. The Tribunal had not precluded inquiry into true intention where supported by proper evidence; rather it concluded on the documentary covenants that the transaction was a sale. The High Court erred in entertaining and answering a question predicated on assumed factual circumstances not arising out of the Tribunal's decision.

Conclusion: Question No. 3 did not arise out of the order of the Appellate Tribunal and is not answered; the High Court's answer on that question is set aside and the appeal is allowed in favour of the appellant.

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