THE APPEAL - ANALYSIS
90 With respect, the primary judge's reasons are both careful and detailed. This was acknowledged by counsel for the ACCC who said that it was difficult to pinpoint precisely where the primary judge had gone wrong. Nevertheless, the submission was that he had erred. The ACCC submitted that its documentary case was a strong one and that this was not a case where an applicant failed because the Court accepted the oral evidence of the respondents' witnesses. In fact, the Court rejected their evidence on a number of matters. The ACCC submitted that it failed at the last hurdle because the primary judge was not prepared to infer the required intention for a contravention by way of an attempt. The ACCC submitted that this was a "Warren v Coombes" type of case (Warren v Coombes and Another (1979) 142 CLR 531 (Warren v Coombes)) and that this Court is in as good a position as the primary judge to decide whether the relevant inference should be drawn. The ACCC's arguments on the appeal consisted of two threads. First, it submitted that the primary judge made a number of specific errors. Secondly, it submitted even if its first submission is not made out, this Court should draw the inference which the primary judge declined to draw.
91 Before analysing these arguments, it is convenient to state (in summary form) the relevant principles concerning an attempt to induce the making of an arrangement or the reaching of an understanding which contravenes s 44ZZRJ of the Act. Section 76(1) makes it clear that the inducement can be by way of threats, promises or other conduct.
92 In order to establish an attempt, an applicant must prove both intention and conduct. The intention is to bring about the proscribed result which in this case is the making of an arrangement or the reaching of an understanding within s 44ZZRJ (Trade Practices Commission v Tubemakers of Australia Ltd and Others [1983] FCA 99; (1983) 47 ALR 719 (Tubemakers) at 737 and 743 per Toohey J). It is not necessary in order to establish the relevant intention to prove that it was accompanied by or included an expectation of success or a belief that the purpose would be achieved (Tubemakers at 736 per Toohey J).
93 The conduct which is necessary to constitute an attempt is a step towards the commission of a contravention, which is immediately and not merely remotely connected with it (Tubemakers at 736 per Toohey J referring to Archbold's Pleading Evidence & Practice 36th, para 4101). The Full Court of this Court in Trade Practices Commission v Parkfield Operations Pty Ltd and Another (1985) 7 FCR 534 (Parkfield Operations) at 538-539 made a similar point when it said that an attempt must involve taking a step towards the commission of contravening conduct and that it is not sufficient that it be merely remotely connected or preparatory to the commission of it. In Australian Competition & Consumer Commission v SIP Australia Pty Limited [2001] FCA 824; (2002) ATPR 41-877 (ACCC v SIP Australia) at 45-015, Goldberg J made the point that what is required for an inducement is that "there be an affirmative or positive act or course of conduct directed to the person who is said to be the object of the inducement". In addition to that point, his Honour also referred to the decision of the Full Court of this Court in the The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 164 where it was said that mere persuasion, with no promise or threat, may well be an attempt to induce.
94 For the purposes of both elements of an attempt, that is to say intention and conduct, it is not necessary for the precise terms of the proposed arrangement or understanding to have been formulated. This point was made by the Full Court in Parkfield Operations (at 539) and another way of putting the point is that it is not necessary for an attempt to be made out to establish that the relevant conduct had reached an advanced stage. Having said this, it is perhaps trite to note that the more advanced the conduct, the more likely it is that the inference of the necessary intention will be drawn.
95 In order for there to be an arrangement or understanding within s 44ZZRJ, there must be a meeting of minds and this involves a commitment to act in a particular way. A mere expectation as distinct from an assumption of obligation, assurance or undertaking to act in a particular way is not sufficient. Unlike an arrangement, an understanding can be tacit (Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (and Others) (1999) 92 FCR 375 (CC Pty Ltd) at [135]-[141] per Lindgren J; Apco Service Stations Pty Ltd and Another v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]-[47]; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd and Others (2007) 160 FCR 321 at [28]-[39] per Gray J).
96 For some time, there has been a debate in the authorities as to whether a meeting of minds involving only one party assuming an obligation as distinct from mutual or reciprocal obligations can constitute an arrangement or understanding of a proscribed kind. The issue has not been authoritatively determined. The courts which have addressed the issue have consistently said that even if the undertaking of a unilateral obligation can constitute a contravening arrangement or understanding, such cases are likely to be rare (see, for example, Trade Practices Commission v Service Station Association Limited and Others (1993) 44 FCR 206 (Service Station Association) at 230-231 per Lockhart J, at 238 per Spender and Lee JJ; CC (NSW) Pty Ltd at [139] per Lindgren J). For reasons which we will give, it will not be necessary for us to resolve the issue in this case.
97 In Service Station Association, one of the respondents, Service Station Association Limited (SSAL), was alleged to be liable to pay a pecuniary penalty by reason of conduct inducing or attempting to induce petrol retailers to fix prices and thereby contravene s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth). SSAL was the trade association of petrol retailers in New South Wales with approximately 1,100 members. The trial judge held that a contravention was not established because the intention of SSAL was not to bring about the making by dealers of the arrangements alleged or the arrival by them at the understanding alleged, but a lawful one of "bring[ing] about a willingness among dealers to examine their individual businesses and the retail prices charged and to increase their retail margins" (Service Station Association at 225). A number of petrol retailers were failing and SSAL recommended that retailers concentrate on profit rather than volume and it published recommended retail prices. The Full Court held that the trial judge had not erred and dismissed the appeal.
98 It seems clear that an industry body may perform an educative or information providing role towards its members without contravening cartel and associated provisions. As a general proposition, it may be said that an industry body may, in the interests of its members and of the industry, provide information to its members and suggest that they examine their present practices and consider changing them.
99 We turn now to the ACCC's submissions.
100 As we have said, the ACCC sought to identify a number of specific errors in the primary judge's reasons.
101 First, in its written submissions, the ACCC submitted that it is not necessary for there to be mutuality or reciprocity of obligations between the parties to an arrangement or understanding (paragraph 11). It submitted that this particular case was a case where mutual or reciprocal obligations were not necessary because the conduct suggested was a specific information exchange in connection with a planned cull and that was to be verified and checked by an independent auditor and was to be carried out through a trade association (paragraphs 30-33). Counsel for the ACCC refined this submission in the course of his oral submissions. As we understood his submission, it was that the "requirement" for mutuality or reciprocity of obligations was, in effect, a tool of analysis to be applied and adapted to the particular circumstances of the case. He did not argue that it was an irrelevant consideration to be ignored in favour of simply saying that a unilateral obligation (or obligations) is sufficient. He submitted that where a trade association or industry body is involved, mutuality or reciprocity recedes into the background. The individual producers might decide to act for the industry. The necessary commitment might be present and the mutuality might be less obvious. Counsel for the ACCC submitted at one point that personifying the collective is a form of mutuality. We note that at another point, he did appear to submit that mutuality or reciprocity is not necessary.
102 Insofar as the ACCC submitted that the primary judge erred in holding that mutuality or reciprocity of obligations was necessary, we reject that submission. The primary judge was aware that a contravening arrangement or understanding might not necessarily involve a reciprocity of obligations. In discussing the relevant principles, his Honour said (at [65]):
… The necessary consensus or meeting of minds need not involve, although it commonly will, a reciprocity of obligations.
103 The primary judge proceeded on the basis that in this case the attempted inducement must relate to an arrangement or understanding involving mutuality or reciprocal obligations because that was how the case was pleaded and conducted and, in a sense, is the natural way to view the allegations made by the ACCC.
104 In its Further Amended Statement of Claim, the ACCC alleged against AECL that it intentionally encouraged the egg producers at the Summit to act in a co-ordinated and consolidated fashion to limit the production for supply and the supply of eggs in Australia. This pleading is representative of the pleas against the other respondents. The ACCC further alleged that at least two of the egg producers were or were likely to be in competition with each other in relation to the production for supply and the supply of eggs. On a number of occasions in closing submissions to the primary judge, counsel for the ACCC referred to mutual obligations or mutual agreement (see Annexure A to Farm Pride's written submissions to this Court). The primary judge dealt with the case on the basis that mutuality or reciprocity of obligations was necessary and that was both understandable and correct in light of the pleadings, the way the case was presented to him and the nature of the case.
105 We will deal with the ACCC's submission that the primary judge placed too much weight on the fact that AECL was an industry representative body and its submission that the evidence about the independent auditor and the culling of hens established a sufficient level of commitment and mutuality or reciprocity of obligations later in these reasons.
106 Secondly, the ACCC submitted that there is a dichotomy between an industry body providing information to its members and suggesting reflection on the action that they might individually take and an industry body providing information and making a call for action. The former is not inducing a contravening arrangement or understanding, whereas the latter is inducing a contravening arrangement or understanding. Service Station Association falls into the former category. This case falls into the latter category because the primary judge found that the ACCC did not restrict itself as a matter of custom and practice to the provision of information (at [259]) and he found that the purpose of the Summit was not limited to the provision of information to the attendees (at [371]). This statement of the primary judge's findings is correct.
107 Nevertheless, we reject the submission to the extent that it is to the effect that once a trade association or industry body goes beyond the provision of information it is attempting to induce a contravening arrangement or understanding. With respect, we think the primary judge correctly summarised the matter when he said (at [400]):
I accept, nevertheless, the respondents' submission that the role and character of AECL is important. In particular, I accept the submission made by reference to Trade Practices Commission v Service Station Association Ltd [1993] FCA 405; (1993) 44 FCR 206, that trade associations and their officers may legitimately encourage their members to examine their profitability and to make production and pricing decisions in order to maintain profitability. Conduct of that kind, at least when directed to the decisions of industry participants in their own businesses and without any suggestion of cooperative action, does not amount to cartel conduct, or even an attempt to induce cartel conduct.
108 The primary judge put the point in a slightly different way (but to the same effect) when he said that conduct whereby industry participants are brought to an appreciation that it is in their interests, independently of what others are doing, to act in a certain way providing it does not involve an expectation of reciprocal conduct by others is lawful (at [388]). We will deal with the alternative submission that the primary judge erred in the significance he attached to the fact that AECL was an industry representative body later in these reasons.
109 Thirdly, the ACCC submitted that the primary judge erred in applying the incorrect standard of proof. As we understood the submission, which, it must be said, was not at the forefront of the ACCC's submissions, the primary judge applied the criminal standard of proof or a standard akin to that standard. The correct standard was the civil standard of proof, that is, proof on the balance of probabilities informed by the matters in s 140(2) of the Evidence Act 1995 (Cth). The basis of the ACCC's submission was the assertion that on occasion the primary judge referred in his reasons to there being an innocent explanation for conduct. It is said that to approach the evidence by asking whether there are explanations consistent with innocence is to apply the criminal standard of proof.
110 We reject this submission. The primary judge was clearly aware of the appropriate standard of proof. He said (at [86]):
In assessing the evidence and the matters to be proved by the ACCC, I keep in mind s 140 of the Evidence Act 1995 (Cth) and the Briginshaw principles.
111 The references to the ACCC not having negatived an understanding as a reasonable one in the context of Mr Kellaway's statement about "co-ordinated and consolidated action" and an "innocent" explanation for the retention of an independent auditor for the identified purpose (at [387]-[388]) must be read in context. When that is done, there is no substance in the suggestion that the primary judge did other than apply the standard of proof which he correctly identified.
112 Fourthly, the ACCC submitted that the primary judge erred in not placing sufficient weight on Mr Kellaway's email dated 9 February 2012. The terms of that email are set out above (at [48]). The ACCC points, in particular, to the reference to the "Outcomes" of the meeting. Initially it seemed to be suggested by the ACCC that this email was part of the conduct constituting the attempt. That was later clarified as not being advanced and properly so. It is clear from the pleadings and the primary judge's reasons that, on the ACCC's case, the attempt was complete and did not continue after Mr Kellaway's PowerPoint presentation or, if not then, when the matter was put to those at the Summit for discussion or, if not then, at some point prior to the end of the discussion. The ACCC submitted that even if the email was not part of the conduct constituting the attempt, it was nevertheless relevant to a consideration of Mr Kellaway's intention. We accept that it might be used in that way. The difficulty for the ACCC is that we do not think it can take the matter any further than the findings of the primary judge to the effect that, accepting Mr Kellaway's evidence as the primary judge did, Mr Kellaway was summarising matters discussed or stated at the Summit, not matters agreed or settled upon at the Summit and to the effect that the email is an indication that AECL was prepared to go beyond the provision of information and contained a continuation of the moral pressure being applied to those egg producers producing at an above average level (at [342]-[343]).
113 Fifthly, the ACCC submitted that the primary judge erred in the weight he placed on two circumstances attending the fact that the Summit was called by an industry representative body. The ACCC submitted that both circumstances were inconsistent with AECL carrying out the function of providing information. The first circumstance is that AECL, through Mr Kellaway, exerted moral pressure on egg producers producing at an above average level of production. That, as we have said, was the finding of the primary judge (at [312], [384]-[385]). That criticism of some of its members is, it is submitted by the ACCC, inconsistent with a purely educative role and inconsistent with encouraging members to engage in self-reflection. The second circumstance is that the invitation to the Summit was directed not to all egg producers, but rather to the top 25 egg producers. That circumstance indicated that achieving a particular result, rather than merely educating its members, was the primary purpose of the Summit. Both these points have force, but again as with the previous points, the difficulty for the ACCC is that the primary judge was aware of these matters (at [263]-[264], [312]) and he made a clear finding that the Summit was not called primarily for information purposes. It was, as the primary judge put it, essentially a call to action with information being provided in support of that call (at [378]).
114 Sixthly, the ACCC submitted that the primary judge erred in law in not holding that the contraventions were made out even on the findings that he did make. The submission was linked to the suggestion concerning the use of an independent auditor and involved the following steps. The ACCC referred to the primary judge's findings about the suggestion of an independent auditor (at [302]-[306]). Those findings are summarised above (at [81]).
115 In his conclusions concerning the independent auditor, the primary judge said (at [388]):
I agree with the ACCC that the reference in Mr Kellaway's slide to an independent auditor is particularly significant. I have already made findings about that. However, the retention of an independent auditor for the identified purpose may also have an "innocent" explanation. The reports of an independent auditor would have provided a means by which AECL, and through it egg producers, would know whether each producer was heeding the AECL's warnings and whether each was, by voluntary and independent action, reducing its hen numbers. In this way, the proposed retention of an independent auditor does not point persuasively to an intention that producers enter into an agreement or understanding with respect to reduction of hen numbers.
(Emphasis added.)
116 The ACCC submitted that the primary judge did not actually make a finding of the "innocent" explanation he identified. In any event and proceeding on the basis that such a finding was made, the ACCC submitted that the explanation would not be "innocent" and in failing to reach that conclusion, the primary judge must have made an error of law. In fact, the proposal would be a contravening arrangement or understanding. In other words, if it be assumed that each producer by voluntary and independent action decided to reduce its hen numbers and that was done on the basis or understanding (in whole or part) that AECL would engage an independent auditor so that the producers would know whether each producer was heeding AECL's warnings, then that would be a contravening agreement or understanding. The ACCC submitted that the necessary level of commitment would be present and that, as matter of policy, this Court should hold such an arrangement or understanding falls within the terms of the Act.
117 We reject this submission. We do not think that voluntary and independent action by each producer in reducing its hen numbers becomes contravening conduct because it is done in the knowledge that there is a mechanism whereby each producer is informed that an industry problem - excess production - is being addressed. We do not think that that involves a provision of the arrangement or understanding which has the purpose of directly or indirectly preventing, restricting or limiting the supply of eggs. We should add in this context that we accept the submission of counsel for AECL and Mr Kellaway that the finding concerning the disclosure of information goes no further than is set out at [388] of the primary judge's reasons (at [115] above).
118 Seventhly, the ACCC submitted that the primary judge had given insufficient weight to certain matters which the ACCC described as "admissions". The first matter was Mr Kellaway's statement to the ABC reporter on 30 January 2012 to the effect that 400,000 to 500,000 birds may need to be culled. The submission was that such a large culling could only result from collective action and Mr Kellaway must have understood that. The second matter was that Mr Kellaway had made inquiries, or caused inquiries to be made, about the capacity of processors to deal with a demand for the culling of hens (at [301]). This indicates that the proposal Mr Kellaway had in mind was well advanced. These arguments about weight are more conveniently dealt with as part of the ACCC's general challenge to the primary judge's decision. We say that because the primary judge was aware of these matters and of their significance (at [278], [301]).
119 Finally, the ACCC submitted that the primary judge erred in his approach to his own findings concerning the moral pressure being brought to bear on some of the producers at the Summit. We think the primary judge's finding was that moral pressure was brought to bear on those producers who had grown at a faster rate than the industry average (at [311]-[312]). The ACCC made two submissions about this topic of moral pressure.
120 First, in its oral submission in reply, the ACCC submitted that the moral pressure was applied to all producers because even those not growing above average were encouraged not to do so in the future. This appears to be a new point and one not put to the primary judge. In any event, there does not appear to be a proper basis for such a conclusion.
121 Secondly, the ACCC submitted that there is an inconsistency between the following two findings (at [386], [403]):
386 To my mind, the fact that Mr Kellaway chose to highlight for the Attendees that some of their members were particularly responsible for the oversupply is inconsistent with him having had an intention to induce all of the Attendees to agree upon a form of mutual and reciprocal action.
403 As already indicated, I consider that the ACCC evidence does establish conduct by the respondents which could constitute an attempt in the requisite sense. However, in my opinion, the ACCC case falls short of establishing that the respondents who participated in the trial had an intention to bring about an arrangement or understanding with the proscribed qualities and that any proposed an arrangement or understanding between producers for the reduction of the supply of eggs. It does establish that these respondents intended that the Attendees should take action to address and correct the oversupply of eggs but not (to the requisite degree of persuasion) that this action should be pursuant to an agreement or understanding involving reciprocal obligations.
122 The ACCC submitted that it was inconsistent for the primary judge to find that the respondents intended all of the attendees at the Summit to take action to address and correct the oversupply of eggs (at [403]) on the one hand and, on the other, to conclude that the focus on those producers growing at an above average rate was inconsistent with an intention to induce all of the attendees to agree upon a form of mutual and reciprocal action (at [386]). We reject this submission because it seems to us to assume that the evidence permitted of precise findings. We do not think that it did. Other than indicating that a precise proposal had not been formulated, there is no inconsistency or tension between Mr Kellaway urging the egg producers to do something and "laying the blame" on producers who were growing at an above average rate.
123 We reject the ACCC's submissions as to the specific errors said to have been made by the primary judge.
124 We turn now to the ACCC's submission that the primary judge erred in failing to draw the inference that the respondents had the necessary intention to make out an attempt. That submission requires some consideration to be given to the basis upon which the primary judge decided not to draw the conclusion that the necessary intention was present and to this Court's role on an appeal.
125 The primary judge made a number of findings which we have summarised. As to some matters, he accepted a witness' evidence and as to other matters, he rejected it. We think when he came to consider whether the relevant intention was made out, he put the evidence of witnesses that they did not have the intention to one side. He considered all of the findings he had made and asked himself whether the necessary intention was established. In the circumstances, that final question did not involve relying on a witness' credit or reliability or both.
126 As to this Court's role on an appeal, the Federal Court of Australia Act 1976 (Cth) gives this Court a number of powers on an appeal, including the power to affirm, reverse or vary the judgment appealed from and the power to give such judgment, or make such order, as, in all the circumstances, the Court thinks fit, or refuse to make an order (s 28(1)(a) and (b)). The Court is to have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact (s 27). The Court is required to conduct a real review (Fox v Percy (2003) 214 CLR 118 (Fox v Percy) at [25] per Gleeson CJ, Gummow and Kirby JJ).
127 As we have previously said, the primary judge made detailed findings concerning the evidence of witnesses which he accepted and the evidence which he rejected. There are no challenges to the primary judge's findings as to credibility and reliability. The tests which the Court applies where there are challenges of that nature are well known (Fox v Percy at [29] per Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 at [76] per Heydon, Crennan and Bell JJ; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]).
128 The scope of this Court's review in cases where the allegation is that the primary judge erred in the inferences he drew or failed to draw from established primary facts is well known and was stated in the following way by the majority of the Court in Warren v Coombes (at 551):
… Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. …
129 However, there are limitations on the power of review which the passage from the majority in Warren v Coombes itself suggests. In Branir Pty Ltd and Others v Owston Nominees (No 2) Pty Ltd and Another (2001) 117 FCR 424 (Branir), Allsop J (as his Honour then was) (with whom Drummond and Mansfield JJ agreed) made it clear that the role of this Court was to correct error and that in order to succeed, the appellant must demonstrate error (at [25]). His Honour summarised the relevant principles in four propositions. It is the fourth proposition which is of particular relevance in this case, but in order to understand the context, it is necessary to set out the passage in full (at [28]):
… From Warren v Coombes, the passages of Menzies J and Walsh J in Edwards v Noble, from the other authority cited by the majority in Warren v Coombes and from more recent decisions of the High Court flow a number of relevant propositions. First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 and SRA v Earthline, supra. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge's views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.
130 There is nothing in Fox v Percy which suggests that the fourth proposition is incorrect. In fact, the following passage from the reasons of Gleeson CJ, Gummow and Kirby JJ supports the proposition (at [23]):
The foregoing procedure shapes the requirements and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Citations omitted.)
(see also Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 140 ALR 227 at 229-230.)
131 It seems to us that it is important to bear in mind that in this case the matter in respect of which the primary judge is said to have failed to draw an appropriate inference is not a matter where there is only one right answer, such as there is where the construction of a document is in issue (an example given by Allsop J in Branir at [25]), where a different view by the appeal court itself establishes error. In this case, the primary judge refused to draw an inference going to the intention of the respective respondents.
132 It seems to us that the issue of whether the inference of intention should have been drawn was finely balanced. The primary judge carefully weighed all the relevant issues and decided that intention had not been made out. It has not been demonstrated that he erred. The advantages he enjoyed over this Court may have been modest, but, in the absence of a preponderance of view against that taken by the primary judge, we would not interfere with his conclusion. In those circumstances, the appeal must be dismissed.