The case is due to be heard next Wednesday when the court sits in Melbourne. It is expected to take at least two days. The court could take up to a month to make a decision, but it is expected to rule next week after the second day of hearings. Under the Commonwealth Electoral Act, the counting of votes must be finished and the writs returned within 100 days. With the new Senate scheduled to sit from July 7, writs for a fresh election would have to be issued no later then March 28. The commission has argued it is not possible to ''conclude with certainty, or on the balance of probabilities'' who has been elected out of the WA vote. There were two counts of the Senate vote in the state.

The first count saw Palmer United Party candidate Zhenya "Dio" Wang and Labor's Louise Pratt elected in the fifth and sixth spots. But after the second count - declared on November 4 - the Sports Party's Wayne Dropulich and the Greens' Scott Ludlam edged out Mr Wang and Senator Pratt. There have been petitions to the court arguing that the original result should be upheld. On Tuesday in Melbourne, Justice Kenneth Hayne ruled that a petition from Greens Senator Scott Ludlam did not meet the criteria to be included in the case and ordered him to pay costs. Senator Ludlam's submission did not dispute the result of the election. It argued that if his position was to be declared void then the whole ballot should be nullified. His petition to the court contained similar arguments to the AEC petition that will be considered next week.

"All eyes are on next week when the substantial matters will be heard," Senator Ludlam said on Tuesday. Senator Ludlam said that if court sent WA back to the polls it would be a test of Prime Minister Tony Abbott's performance as prime minister. Newly-elected Labor senator Joe Bullock said he wanted a decision on whether there would be a fresh election as soon as possible. Mr Bullock - who was elected in the second spot - said he expected Labor's vote to rise if a fresh election was held, arguing WA voters had already delivered a protest vote at the September election. But he questioned the AEC's push for a fresh election and said the 1370 votes lost by the commission should be counted.

"As I understand the position of the AEC, they say their needs to be a fresh election because 1300 people were denied to vote. I find that difficult to accept,'' he said. "It may be well be that if there is a 2014 election, the result might be totally different, but that's not what we are trying to do. We had a general election in September 2013 and we are trying to work out what the result should have been." "We would pick up more votes, no doubt, the ALP would do much better. But that doesn't mean I think we should have one." with Judith Ireland Follow us on Twitter

