Per
curiam:—This
is
an
application
in
writing
under
Rule
324
for
a
consent
judgment,
the
effect
of
which
consent
judgment
would
be
that
the
judgment
of
the
Trial
Division
would
be
set
aside
and
there
would
be
a
judgment
of
this
Court
whereby
the
appellant’s
assessment
under
Part
I
of
the
Income
Tax
Act
for
the
1961
taxation
year
would
be
referred
back
to
the
respondent
“to
reassess
the
appellant’s
tax
and
interest
in
the
total
amount
of
$100,000
in
accordance
with
the
Amended
Minutes
of
Settlement
filed’’.
When
this
application
was
first
considered,
as
we
had
doubt
that
the
application
should
be
granted,
we
gave
reasons
for
judgment
on
April
22
last
[reported
[1974]
CTC
313]
setting
out
our
difficulties
and
we
gave
counsel
an
opportunity
to
speak
to
the
matter.
Counsel
took
advantage
of
that
opportunity.
At
the
resulting
hearing,
it
was,
in
effect,
conceded
that
judgment
could
not
go
in
the
terms
that
had
been
consented
to
but
it
was
sought
to
persuade
the
Court
that
judgment
could
be
granted
in
other
terms
that
would
accomplish
what
the
parties
had
actually
had
in
mind
when
the
Minutes
of
Settlement
were
agreed
upon.
In
support
of
submissions
made
at
the
oral
hearing,
an
affidavit
was
filed
by
counsel
for
the
respondent
and
reference
was
made
during
argument
to
some
of
the
evidence
that
was
before
the
learned
trial
judge,
in
that
connection,
it
should
be
emphasized
that
there
is,
as
far
aS
we
know,
no
way
in
which
this
Court
can
be
put
into
a
position
to
exercise
its
powers
to
dispose
of
an
appeal
from
a
judgment
of
the
Trial
Division
by
setting
aside
or
varying
such
judgment
other
than
by
a
hearing
of
the
appeal
on
the
merits
or
a
consent
to
judgment.
Furthermore,
where
a
consent
judgment
can
be
given,
the
judgment
should,
In
our
view,
be
based
exclusively
on
the
consent.
It
is
no
part
of
the
Court’s
function,
on
an
application
for
consent
judgment,
to
examine
the
issues,
either
of
fact
or
of
law,
involved
in
the
appeal
except
in
so
far
as
may
be
necessary
for
the
Court
to
satisfy
itself
that
the
judgment
sought
is
within
the
jurisdiction
of
the
Court
and
is
one
that
can
legally
be
granted.
For
the
latter
purpose,
there
may
be
occasions
when
affidavit
evidence
may
be
appropriate
but,
generally
speaking,
the
papers
should
be
so
drawn
that
such
evidence
is
not
necessary.
Leaving
aside
the
difficulties
raised
by
our
Reasons
of
April
22
last
that
have
been
accepted
by
counsel
as
barring
a
consent
judgment
in
the
terms
originally
agreed
upon
by
the
parties,
we
shall
endeavour
to
indicate
the
remaining
problem
as
briefly
as
possible.
The
reasons
for
judgment
of
the
learned
trial
judge
disclosed
that
what
was
in
issue
in
the
proceeding
before
that
Court,
which
was
an
attack
on
the
appellant’s
1961
assessment,
was
whether
an
amount
of
$200,500
had
been
received
in
such
circumstances
as
to
require
that
it
be
included
in
computing
the
appellant’s
income
for
the
1961
taxation
year
for
the
purposes
of
Part
I
of
the
Income
Tax
Act
and
that
there
was
no
dispute
as
to
the
amount
of
the
alleged
benefit.
The
amount
of
additional
tax
involved,
if
that
amount
was
properly
included
in
income,
was
$133,381.58.
The
Trial
Division
held
that
the
amount
was
properly
included
in
computing
income
and
did
not,
therefore,
interfere
with
the
assessment.
The
judgment
originally
sought,
on
consent,
was
a
judgment
that
would
have
reduced
the
amount
of
tax
flowing
from
the
transaction
in
question
without
eliminating
it.
Having
regard
to
the
fact
that
there
had
been
no
issue
between
the
parties
as
to
quantum,
the
proposed
judgment
appeared
to
be
intended
to
implement
a
compromise
settlement
rather
than
to
implement
an
agreement
between
the
parties
as
to
how
the
assessment
should
have
been
made
by
application
of
the
law
to
the
true
facts.
That
being
so,
there
was,
in
our
view,
doubt
as
to
whether
the
Court
had
jurisdiction
to
grant
the
proposed
judgment.
The
reason
for
that
doubt,
as
indicated
by
our
Reasons
of
April
22,
was
that,
in
our
view,
the
Minister
has
a
statutory
duty
to
assess
the
amount
of
tax
payable
on
the
facts
as
he
finds
them
in
accordance
with
the
law
as
he
understands
it.
It
follows
that
he
cannot
assess
for
some
amount
designed
to
implement
a
compromise
settlement
and
that,
when
the
Trial
Division,
or
this
Court
on
appeal,
refers
an
assessment
back
to
the
Minister
for
reassessment,
it
must
be
for
reassessment
on
the
facts
in
accordance
with
the
law
and
not
to
implement
a
compromise
settlement.
Is
the
position
any
different
where
the
parties
consent
to
a
judgment?
In
ordinary
litigation
between
private
persons
of
full
age
and
mentally
sound,
the
Court
has
not,
in
normal
circumstances,
any
duty
to
question
a
consent
by
the
parties
to
judgment.
We
should
have
thought
that
the
same
statement
applies
where
the
Crown,
represented
by
its
statutory
legal
advisers,
is
one
of
the
parties.
There
is,
however,
at
least
one
exception
to.
the
unquestioning
granting
of
consent
judgments,
regardless
of
who
the
parties
are,
namely,
that
the
Court
cannot
grant
a
judgment
on
consent
that
it
could
not
grant
after
the
trial
of
an
action
or
the
hearing
of
an
appeal.
It
follows
that,
as
the
Court
cannot,
after
a
trial
or
hearing,
refer
a
matter
back
for
assessment
except
for
assessment
in
the
manner
provided
by
the
statute
and
cannot
therefore,
at
such
a
stage,
refer
a
matter
back
for
reassessment
to
implement
a
compromise
settlement,
the
Court
cannot
refer
a
matter
back
by
way
of
a
consent
judgment
for
reassessment
for
such
a
purpose.
We
did
not
understand
counsel
to
make
any
submission
inconsistent
with
this
view.
What
they
did
indicate
was
that,
notwithstanding
the
appearances
flowing
from
the
circumstances
to
which
we
have
referred,
in
fact,
the
Minutes
of
Settlement
were
designed
to
give
effect
to
an
agreement
reached
by
the
parties
as
to
what
the
assessment
should
be
when
the
law
is
applied
to
the
actual
facts.
In
the
circumstances,
there
is
no
reason
why
the
parties
cannot
re-apply
on
the
basis
of
a
consent
to
a
judgment
designed
to
implement
an
agreement
of
the
parties
as
to
how
the
assessment
should
have
been
made
by
application
of
the
law
to
the
true
facts.
If
there
should
be
such
a
further
application,
we
suggest
that,
having
regard
to
the
history
of
the
matter,
there
should
be
an
express
recital
in
the
consent
that
it
is
designed
to
implement
such
an
agreement.
We
also
suggest,
in
the
circumstances
of
this
case,
that
the
appropriate
judgment
would
be
a
judgment
that
sets
the
judgment
of
the
Trial
Division
aside
and
refers
the
assessment
back
for
reassessment
on
the
basis
of
the
fact
agreed
upon
without
attempting
to
determine
the
amount
of
tax
or
interest
payable.
We
have
concluded
that
the
application
for
consent
judgment
should
be
dismissed
without
costs
and
without
prejudice
to
the
right
of
either
or
both
parties
to
make
an
application
for
judgment
on
consent
in
terms
that
are
different
from
the
terms
of
the
judgment
sought
on
this
application.