Language – Scintilla

This noun is defined in the Macquarie Dictionary (Online) as ‘a spark; a minute particle; a trace: not a scintilla of recognition’.

In the Merriam-Webster Dictionary (Online), the word is defined as ‘spark, trace: not a scintilla of doubt’.

The following entail uses of the term in caselaw:

• In Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90 per Ward JA:

[87] During the hearing of the appeal, Mr Walker accepted that the “no evidence” ground could also be put (on the same factual material as the strict “no evidence” ground itself) on the basis that, even if there were a scintilla of evidence to support the referee’s finding that damages for loss of the opportunity to make profits could be assessed by reference to the projected profits under the IAMS 2 scenario, it was manifestly unreasonable for the referee so to find in light of all of the evidence before him (and hence the adoption of that finding by the primary judge was manifestly unreasonable).

[88] In Naxakis v Western General Hospital [1999] HCA 22 ; (1999) 197 CLR 269, Kirby J (at [55]) considered the genesis of the “scintilla doctrine” (referring to the decisions in John Wheelton, Lys Seagar and Charles Lane v Edward Brydges Hardisty, Jacob Bell and Walter Barker (1857) 120 ER 86; Toomey v London, Brighton, and South Coast Railway Co [1857] 3 CB (NS) 145; and Ryder v Wombwell (1868-69) LR 4 Ex 32). The doctrine, applied in Hampton Court Ltd v Crooks Ltd (1957) 97 CLR 367, focuses on whether the evidence made available to the fact finder opened the possibility of that fact finder reasonably coming to a conclusion that the fact sought to be proved was in fact established on that evidence. The test is not as to whether there was any evidence at all.

[89] McHugh J, in the majority in Naxakis, said:

… At one stage in the development of the common law, an issue of fact would be left to the jury to determine where there was some evidence — even “a scintilla of evidence” — in support of the fact. That doctrine applied to issues of negligence as well as to other issues of fact. By the middle of the last century, however, it had become settled doctrine that a “scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury: there must be evidence upon which they might reasonably and properly conclude that there was negligence”. So … the question is, as Willes J said in a non-negligence context, [in Ryder v Wombwell] “not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established”. (my emphasis)

[90] Similarly, in Swain v Waverley Municipal Council [2005] HCA 4 ; (2005) 220 CLR 517, it was accepted that the question was not whether there was literally no evidence to support the finding of fact but whether there was more than a mere scintilla of evidence favouring such a finding. Kirby J (in dissent) emphasised (at [560]) that :

The “no evidence” ground, as it is currently named, bears little relationship to the concept which it is intended to signify. More properly, it should be called the “no reasonable evidence” ground. That is how I mean the expression to be understood. It remains to decide whether the evidence that has been proved is such that it could reasonably satisfy the jury that the contested fact is established.

• Praljak v Commissioner of Police [2024] QCA 9, per Fraser JA at page 1:

The applicant argues there was a reasonable apprehension of bias on the part of the District Court judge. The suggested basis for this argument is contained in two emails the applicant sent to the judge’s associate before the hearing. The emails purport to state biographical information about the judge. The applicant’s argument assumes there is something sinister in that information, or at least in so much of it as concerns the judge’s purported associations with a university and a law firm. Apparently upon that assumption, the applicant’s second email makes allegations of unlawful and corrupt wrongdoing by the judge. No particulars of the allegations are given and there is not a scintilla of evidence to justify any of them. Nor is there even evidence that the apparently innocuous biographical information in the emails is correctly attributed to the judge. The judge informed the applicant it was not correctly attributed to his Honour. There is no substance in the applicant’s challenge to the judge’s conclusion that the application for the judge to recuse himself was baseless.