1. Under section 312(d) of the Local Government Act 2020 (Vic), the application is dismissed.

1. On 26 October 2024, local government elections were held across Victoria, as the Local Government Act 2020 (Vic) (the LG Act) requires to happen every four years.
2. In the Yallourn Ward of the Latrobe City Council, the first count of the votes led to the provisional result, on 6 November 2024, that Mr Graeme Middlemiss, a long-standing local councillor, would be re-elected, with 2,030 first preference votes. Ms Steph Morgan attracted 2,027 first preference votes, being the only other candidate. 272 votes were deemed informal. Mr Middlemiss won by three votes.
3. Given the close result, the Victorian Electoral Commission (VEC) decided to recount the votes.
4. The VEC's Recount Policy - Local Government Elections (Recount Policy) permits the VEC to direct an Election Manager to initiate a recount when a critical or close margin has been identified, or where it is deemed necessary to ensure the integrity or confidence of the election result.
5. The 8 November 2024 recount resulted in Ms Morgan being declared the elected candidate (the Declaration) (still 2,027 votes) with Mr Middlemiss losing by four votes, with a reduced total of 2,023 votes.
6. The VEC refused Mr Middlemiss' 11 November 2024 request for a third count and made the Declaration.
7. That day, Ms Morgan was declared the elected candidate.
8. On 27 November 2024, VCAT received an application from 11 people entitled to vote in the 2024 election for the Latrobe City Council (the Electors). The application was submitted by Mr Gregory Hansford, representing himself and the ten other Electors.
9. The application was made under section 311(b) of the LG Act. It says that within 14 days of the declaration of the result of an election, 10 persons who were entitled to vote at the election who dispute the election's validity may apply to VCAT for review of the declaration of the result of the election.
10. This application is the first such application received by VCAT since the commencement of the LG Act and the 2020 and 2024 local government elections.
11. As discussed in my earlier decision in this case, Wiebenga v Victorian Electoral Commission [2025] VCAT 37 (Wiebenga No. 1), a problem arose with the validity of the application. The Electors, including Mr Hansford, were not entitled to vote in the Yallourn Ward. They were entitled to vote in other wards for the Council. I decided that the LG Act, read as a whole, required the applicants to be entitled to vote in the ward, about which they disputed the result.
12. This was an 'innocent error' by Mr Hansford.
13. The LG Act does not clearly say that only people entitled to vote in a ward may apply to VCAT to challenge the declaration in that ward. Neither the VEC website, nor VCAT advised Mr Hansford of this requirement.
14. VCAT permitted Mr Hansford to replace the Electors with 13 new applicants entitled to vote in the Yallourn Ward.[1]
15. On 13 March 2025, the application came to hearing before me. Mr Hansford, then not an applicant, appeared, as a non-lawyer advocate, to represent the Electors.
16. The VEC had confirmed the entitlement of each of the applicants to vote in the Ward. They had provided their names and addresses. The VEC had checked their enrolment in the Ward.
17. In the week before the final hearing, 12 applicants confirmed by email their continuing involvement in the case, their appointment of Mr Hansford to represent them and their understanding that the final hearing would proceed on 12 March 2025.[2] One person who did not do so was removed as an applicant.
18. I formally permitted Mr Hansford to represent the Electors.[3]
19. A number of the Electors attended the hearing which was held via Zoom. The VEC was legally represented.
20. Mr Benjamin Sutherland, Director, Event Strategy and Delivery Branch (the Branch) of the VEC (since February 2023) gave evidence. Mr Hansford and Mr Middlemiss also gave evidence.
21. During his evidence, Mr Middlemiss alleged, for the first time as far as Mr Hansford, the VEC or VCAT was concerned, that at the recount of the Ward election, a VEC officer in casual conversation with Mr Middlemiss' scrutineer, before the recount began said, 'Stephanie (referring to Ms Morgan) will win this'. He described his scrutineer as less experienced than his usual scrutineer, who was ill at the time, as being nonplussed by this statement.
22. This allegation was made five months after the election.
23. I ordered that by 20 March 2025, the Electors, via Mr Hansford, were to advise whether they sought to amend the grounds of their application to include Mr Middlemiss' allegation. If they did, they were to provide a submission concerning the basis for their requested amendment.
24. This was necessary because only some of the Electors were at the hearing. Mr Hansford needed the opportunity to consult with all the Electors.
25. Mr Hansford later sought an extension of time to 2 April 2025 because Mr Middlemiss and the scrutineer were unable to provide statutory declarations due to health conditions. The VEC opposed the extension, raising concern at further delay.
26. I granted the extension, advising the parties via VCAT order dated 27 March 2025 that other work prevented me from deciding this case until early April. The orders said in part:

However, the Tribunal does not intend to, unless it gives leave for the grounds of the application to be amended, to receive or consider statutory declarations from Ms Middlemiss or the scrutineer involved.

I will decide the issue of whether leave is granted on the basis of assuming that the applicants will provide further evidence concerning the claimed statement to the scrutineer ...

No further extensions of time are likely to be granted.

1. On 1 April 2025, VCAT received an email from Mr Hansford, saying that the scrutineer would send her statutory declaration the next day, but Mr Middlemiss would not, due to a continuing health condition.
2. On 2 April 2025, VCAT received from the scrutineer her statutory declaration concerning events at the recount. The scrutineer apologised for the delay, caused by her recovering from a medical condition.
3. The Electors have not applied for leave to change the grounds of their application within the extended timeline to 2 April 2025.
4. Given the apparently extenuating health circumstances, and in the interests of transparency in dealing with the issues before VCAT, I have considered the scrutineer's statutory declaration.

1. Section 311 of the LG Act says when an application to the Tribunal can be made concerning the declaration of the result of a local government election:

311 Application to VCAT for review

Within 14 days of the declaration of the result of an election_ - _

(a) a candidate in that election who disputes the validity of the election; or

(b) 10 persons who were entitled to vote at the election who dispute the validity of the election; or

(c) the VEC_ - _

may apply to VCAT for a review of the declaration of the result of the election.

1. Section 312 provides VCAT with powers to deal with and decide an application under section 311:

312 Powers of VCAT

(1) VCAT has the following powers in conducting a review under section 311 -

(a) to declare that any person declared elected was not duly elected;

(b) to declare any candidate duly elected who was not declared elected;

(c) to declare an election void;

(d) to dismiss or uphold an application in whole or in part;

(e) to amend or permit the amendment of an application;

(f) to order the inspection of, and permit copying of, documents used in connection with an election, subject to such terms and conditions as it considers appropriate;

(g) to undertake a preliminary review of an application;

(h) to require any further information relating to an application;

(i) to make any declaration in relation to its powers under this section as VCAT considers appropriate in the circumstances.

1. The powers set out at section 312(1) provide no specific power for VCAT to order a recount.
2. However, section 312(3) says:

(3) VCAT cannot order a recount of the whole or any part of the ballot-papers unless VCAT -

(a) is satisfied that a recount is justified; and

(b) has advised the VEC of its intention.

1. I agree with the VEC that given the specific reference in section 312(3) concerning where VCAT may not order a recount, that section read together with section 312(i), gives the Tribunal power to order a recount. If VCAT did not have the power, there would be no need for section 312(3).
2. I now turn to the evidence, submissions and decision in this case.

1. As I said in Wiebenga No. 1, on learning of this case, Mr Middlemiss wrote to VCAT saying he wished to give evidence.
2. He wrote that after the VEC had refused his request for a third count, that he felt, 'deprived of justice and considered an appeal to VCAT'. He did not apply to VCAT, given what he understood to be the significant cost involved and his, 'observations (over many years) of VCAT decision-making practice'. Mr Middlemiss also wrote that he was unaware of the original application in this case until after the first directions hearing.
3. Mr Middlemiss served on the Latrobe City Council for 27 years.
4. Having won the first count by three votes, he regards the process which elected Ms Morgan on recount as unfair and a denial of natural justice. In his view, there have been two counts with two different results and no way to decide which is correct. There should be a third count conducted by independent VEC staff, not by the staff who conducted the first and second counts.
5. I described above Mr Middlemiss' evidence about what his scrutineer told him about events before the recount.
6. He agreed that he understood that his scrutineer did not raise the issue on the day. He would not expect her to 'take the VEC on', on such an issue. He agreed with the proposition that if the issue had been raised previously the VEC would have investigated. Mr Middlemiss remains suspicious of the recount.

1. The following is drawn from Mr Sutherland's evidence by affidavit, supported by documents of the time such as completed scrutineer check-in and checkout forms, and from his evidence at the VCAT hearing.
2. The Branch's key responsibilities include maintaining the register of electors and producing electoral and voters' rolls and planning and delivering local government elections.
3. After the October 2024 election, the VEC conducted a manual count of the votes in the Yallourn Ward over 1 and 6 November 2024. Each candidate appointed a scrutineer who was present on both days of the counting.
4. Mr Middlemiss was declared the winner by three votes.
5. Under the VEC's Recount Policy, a critical or close margin occurs where a candidate loses but is deemed to have a reasonable prospect of being elected through a recount. For counts with only two candidates, a critical margin is below 0.025% of votes polled. The margin of the provisional result for the Yallourn Ward election was within that margin.
6. Mr Sutherland's job includes deciding whether a recount will be called. On 7 November 2024, following a recommendation by the VEC's Count Integrity Team that a full manual recount occur because of the critical margin, he decided that the VEC would hold a full manual recount.
7. In general, the main reason for a recount is that the results are close. There were 15 recounts across Victoria for the 2024 local government elections.
8. This was the case in the Yallourn Ward. No issues were raised about procedural or system deficiency in the initial count process. Scrutineers had the opportunity to perform their responsibilities.
9. Later on 7 November 2024, a candidate bulletin informed both candidates the VEC had decided to conduct a full manual recount on 8 November 2024, providing arrangements for the recount. The bulletin said, 'The recount result is final, and the election will be declared based on its result'.
10. On 8 November 2024 from10am, a full manual recount was held at the same venue as the original count, at the Moe Town Hall, in accordance with the VEC's Recount Policy.
11. Ms Morgan appointed two scrutineers. Mr Middlemiss appointed one scrutineer, each of whom signed in to the venue at 9:30am.
12. The same electoral manager who conducted the initial count conducted the recount.
13. Seven election officials conducted the recount, compared to the original count with five officials. Mr Middlemiss and Ms Morgan, were not present.[4]
14. The counting method for the recount was the same as for the original count.
15. It is uncommon for recounts to have an identical result as the original count. Reasonable minds may differ on the interpretation of and the formality of a ballot-paper. It is possible for a different candidate to emerge successful after a recount, particularly where the initial count was very close.
16. Mr Sutherland confirmed that the recount result was that total votes polled was 4,329. Ms Morgan received 2,027 first preference votes. Mr Middlemiss received 2,023 first preference votes. 279 votes were deemed informal. Ms Morgan was the successful candidate by four votes.
17. I record here that in Wiebenga No. 1, I wrongly said that the recount result was due to seven votes previously counted to Mr Middlemiss being deemed informal. The VEC clarified at the final hearing that this was incorrect. The recount process does not provide a detailed analysis of the mathematics behind the recount result. I previously misunderstood the situation.
18. On 8 November 2024, after the recount was done, a candidate bulletin was sent to the candidates, with the recount results.
19. On 11 November 2024, Mr Middlemiss asked the electoral manager for a further recount. The manager sent the request to the VEC's Count Integrity Team for assessment in accordance with the VEC's Recount Policy.
20. That day, Mr Sutherland received a recommendation from the Team to refuse the request.
21. The Team advised:

(a) A full manual recount had already been conducted;

(b) There was no procedural or system deficiency identified by the VEC or scrutineers during the recount;

(c) There was no deficiency in the reconciliation of votes counted; and

(d) Scrutineers were provided with the opportunity to perform their responsibilities.

1. Mr Sutherland described the VEC's Recount Policy:

If there has already been a full recount conducted for an election, the results of a recount are final and the election will be declared on these results. This includes situations where the successful candidate/s change, and where the recount has resulted in a tie at the final vacancy. The only exception is where a procedural or system deficiency is identified in the conduct of the recount itself that may undermine public confidence in the result.

1. Based on the Count Integrity Team's advice and in line with the VEC's Recount Policy, on 11 November 2024, Mr Sutherland refused Mr Middlemiss' request for a further recount.
2. In the scenario that VCAT ordered a second recount, Mr Sutherland's evidence was that under the VEC's Electoral Services Agreement with the Latrobe City Council, the costs to the VEC to hold a further recount would be recovered from the Council along with the costs of the election, the completed recount, and the VEC's legal costs incurred in this case.
3. Any recount ordered by the Tribunal must be conducted in the same manner, following the same procedures as the initial count and the first recount. A full manual recount would be required, as well as standard notifications to candidates and arrangements for scrutineers.
4. If any further recount were to be held in, or close to, Yallourn Ward for the convenience of scrutineers, there would be additional costs associated with transporting ballot papers currently in secure storage, arranging an appropriate venue and engaging additional staff.
5. If any further recount were to be held in Melbourne, scrutineers may be required to travel.
6. Concerning the implication of VCAT ordering a second recount, Mr Sutherland's evidence was that such an order may lead to the public wrongly understanding that VCAT must have identified a procedural or system deficiency, which would undermine public confidence in the election results.
7. If a critical or close margin alone was sufficient for a further recount, a consistent application of that principle would require the VEC to continue to conduct further recounts whenever there was a critical or close margin. In that circumstance, there could be no certainty of result unless or until there was a result that was not close. That may never eventuate.

1. The Elector's position is that a three vote margin on the first count in favour of Mr Middlemiss, followed by a four vote margin in favour of Ms Morgan on the recount makes it fair that there be a third 'deciding' count, which will be regarded as a fair 'two out of three wins' result.
2. Mr Hansford described the Latrobe Valley community as doubting the result of the election. While he only needed to find a few over 10 applicants, in case one or more applicants withdrew from the case, he could have easily recruited (my term) many more.
3. Mr Hansford acknowledged that the count and recount were legally valid. He put the view that if the recount had been properly conducted, the results for each count would be the same.
4. He based his observation on his substantial experience working on election counts in charge of a polling centre and as a scrutineer in the past.
5. In his opinion, counting about 4,000 votes is fairly straightforward. The result of two counts is highly likely to be the same. If counting 20,000 or 50,000 votes in an election, change can be expected. The difference here, in his view indicates there must be a problem. Mr Hansford did not accept Mr Sutherland's evidence on the issue of reasonable minds differing between a count and a recount, meaning that the results can differ.
6. Mr Hansford had unsuccessfully tried to obtain expert evidence from a statistician or psephologist (an expert in elections). His emails to various experts, including the well-known Mr Anthony Green of the ABC, went unanswered.

1. In summary, the VEC submitted that section 311 of the LG Act permits 10 or more electors who dispute the validity of the election to apply to VCAT for review of the declaration of the result of the election.
2. Given the basis of the application, these electors must establish some form of invalidity in the election process that lead to the election result.
3. Here, the VEC submitted, the Electors do not challenge the validity of the process and have not demonstrated any such invalidity. Their challenge is only based on there being two very close results.
4. While both candidates had scrutineers at the recount, until the day of the VCAT final hearing, there was no challenge to the validity of the recount process.
5. Close results do not indicate or establish invalid process. They are a feature of local elections. Mr Sutherland gave evidence that there were 15 close elections in the 2024 local government elections.
6. The VEC uses robust policies and procedures to conduct recounts.
7. A third count for the Yallourn Ward could well be different from the previous counts. Mr Sutherland has given evidence as to how reasonable minds differ in the counting process.
8. VCAT ordering a recount only because of the close result, could establish precedent for that to happen whenever there was a close result. This would undermine the certainty and finality of election results.
9. That finality is important because once results are declared, the business of, here local government, can proceed in an orderly fashion with citizens having certainty as to who is their elected representative.
10. Here, ordering a recount without any established invalidity of process, would upset that certainty, five months after the local government election.
11. Also, a second recount could result in another close result. Another 10 electors may be able to challenge that result through another application to VCAT.

1. Before providing the reasons for dismissing the application, I first address Mr Middlemiss' allegation.
2. With the Electors making no application to rely on the allegation, there is no basis to consider the allegation, based on an application by a party to the case.
3. That said, I have considered whether, in any case, there is a public interest in the Tribunal hearing the evidence of the scrutineer and providing the opportunity for others present at the recount to give evidence.
4. In my view there is no such public interest, for the following reasons.
5. First, Mr Middlemiss as a repeat candidate at local government elections, would have been well aware of the 14 day time limit for applying to VCAT seeking orders to overturn the recount. As described above he considered doing so, and did not.
6. To allow the allegation to now be raised and considered in this case would fundamentally change the nature of the issues before VCAT.
7. This would negate the strict time limits that Parliament decided apply with respect to applications to VCAT challenging the results of local government elections. It would cause even longer delay in achieving a certain result in the Yallourn Ward Election.
8. Second, the scrutineer's half page statutory declaration is somewhat vague.
9. It is unclear whether she is referring to one VEC officer (probably) or more than one officer. She does not say when the statement was made to her. The scrutineer seems to say that she did not act on this because she was concerned about her husband having gone to see a medical specialist and she could not be with him.
10. In brief text, the scrutineer seems to criticise the counting process, her reasoning unclear.
11. While Mr Middlemiss described the scrutineer as less experienced than his usual scrutineer (who was not well at the time) the scrutineer said she has scrutineered for many elections over the years, council, state and federal.
12. She concludes:

It would be a more proper count to recount all votes for this seat, to confirm once and for all the true verdict will be revealed.

... I was surprised by the actions and comments by the returning officer and staff at the recount.

1. If VCAT held a further hearing and heard the scrutineer's evidence and the evidence of others present (which would presumably be given), with the passing of time and recollections dimmed, it is entirely possible that the allegation would not be proven.
2. Third, if it was proven that, say a single VEC official made such a statement before the recount, while such a statement would be unwise and inappropriate, that alone would not prove invalidity of the recount process with multiple VEC officers and scrutineers present at the recount which then followed.
3. As the VEC submitted, the allegation does not suggest there was a procedural or system deficiency in the recount. It does not allege a deficiency in the reconciliation of votes counted or that scrutineers were denied the opportunity to perform their responsibilities.
4. I turn to my reason for dismissing the application.
5. Under section 312(c) of the LG Act, VCAT cannot order a recount of the whole or any part of the ballot-papers unless the Tribunal is satisfied that a recount is justified and has advised the VEC of its intention.
6. I am not satisfied that a recount is justified.
7. Therefore, the application is dismissed under section 312(1)(d) of the LG Act.
8. While the parties raised a variety of issues, the reason is simple.
9. Under section 311 of the LG Act, the basis for an application by 10 or more electors is that they dispute the validity of the election in the ward in which they voted.
10. Therefore, the basis on which VCAT may order a recount, or make other orders sought, is evidence which establishes some form of invalidity in the election process.
11. The only basis for the Electors seeking that VCAT order a recount was the very close result. There is no evidence of invalidity.
12. I accepted Mr Sutherland's evidence and the VEC's submissions that a close result, which is reasonably common in local government elections, is not evidence of invalidity in the process.
13. I preferred Mr Sutherland's expert evidence, as a senior VEC officer, to the evidence of Mr Hansford and Mr Middlemiss.
14. While I accept that Mr Hansford's and Mr Middlemiss' views are genuinely held, and respect their right to hold those views, while they are experienced in politics and elections, their evidence did not go beyond unproven assertions.

[1] The new applicants referred to as 'the Electors' from this point in these reasons.

[2] At the direction VCAT in earlier orders, under 62(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

1. [3] Section 62(1)(c), of the VCAT Act says that parties in a proceeding may be represented by any person permitted or specified by VCAT. Mr Hansford had already represented the Electors at directions hearings.

[4] Candidates are not permitted to attend.