Final WA Senate count in limbo until January leaving hopefuls to sweat it out over summer

POLITICAL strategists will sweat it through summer after the High Court flagged the challenges to the WA senate results won't be heard until January.

POLITICAL strategists will sweat it through summer after a High Court judge flagged the challenges to the Western Australian senate results would not be heard until late January.

The outcome of the case could be crucial in determining if the government's legislative agenda can succeed.

But Justice Kenneth Hayne, sitting as the Court of Disputed Returns, said the matters may not be settled before the new Senate sits in July.

The original results saw Labor's Louise Pratt and Zenhya Wang from the Palmer United Party win the final two senate spots from WA.

A recount demanded by the Greens saw their sitting Senator Scott Ludlum and the Sports Party's Wayne Dropulich elected in the pair's stead.

During the process it was discovered 1370 votes had gone missing. These have not been recovered.

In the wake of this an embarrassed Australian Electoral Commission asked the court to overturn the result and order a fresh election, a step likely to cost $13 million.

Justice Hayne yesterday proposed putting the legal questions of the case before a single judge for hearing around Australia Day, with the possibility of a full court sitting if required.

"I'm of course conscious of the need to bring these petitions to their final conclusion as soon as reasonably practicable," he said.

Justice Haynes declined to order fresh counts of the ballots as sought by Mr Wang and WA ALP state secretary Simon Meade, as it would divert time and energy from pursuing the legal issues.

He asked the parties to return to court tomorrow with an agreed statement of the legal questions which would be tried.

Solicitor-General Justin Gleeson SC said it was the AEC's "reluctant position" that the Senate positions could not be safely assigned and the case should remain in the High Court given the importance of the legal questions and the gravity of the potential effects.

The case is complicated by a lack of precedent and the closeness of the count.

A special election for just one senate spot was held in South Australian in 1908, but this predates the proportional representation system now used for the upper house.

A key stage in the elimination of candidates that determined the final flow of preferences and the election outcome was settled with a two-vote gap.

The narrowest House of Representatives margin allowed to stand since the first federal election has been a seven vote victory in 1914.