In a decision handed down last week, VCAT deputy president Heather Lambrick refused Dr Fidge’s application to send the case to the Supreme Court, saying rules concerning elections should be determined by the Parliament.

Cr Fitzpatrick was elected last year following the death of former councillor Ruth Amery, when the 1971 ballot papers that contributed to Cr Amery’s election were recounted.

Dr Fidge argued this procedure was invalid because the recount should have used all the ballots in the election, a process which would have resulted in his election.

Victorian Attorney General Martin Pakula disputed claims the process ignored 75 per cent of ballots and told VCAT Dr Fidge’s challenge was “bound to fail” if referred to the Supreme Court because Wangaratta Council followed countback rules in the Local Government Act.

Ms Lambrick said Dr Fidge was unable to articulate any principle of law he would use to argue his case in court.

“I do not consider that the referral would be appropriate in this case,” she said.

“This is because I agree with the submissions of the Attorney General that the outcome of the referral would have no bearing on the current proceeding.”

A review of the Local Government Act will include a proposed reform to count votes cast by all voters in the relevant election, not just those of the vacating counsellor.

“The concerns raised by Dr Fidge are therefore known and are being considered by the legislature – this is appropriate,” Ms Lambrick said.

“It is for the Parliament to determine the form and content of the electoral system for local councils, including how vacancies are to be filled.”

The decision was handed down by VCAT soon after Dr Fidge complained the delay was affecting his run as a candidate in the Ovens Valley election.