Rod Culleton's brother-in-law will fill his vacant Senate seat but not before another blunder by the disqualified senator.
Mr Culleton's lawyer Peter King was still referring to him as "senator" when he fronted the High Court on Thursday afternoon.
The court, sitting as the Court of Disputed Returns, had convened to make orders about how a special recount of the ballot papers should be conducted to fill the West Australian seat.
Mr King argued the court had no such jurisdiction to make those orders, insisting the Senate itself needed to refer the question of a recount to the court.
"(The attorney-general) needs to go back to his colleagues in the house and obtain the authorisation," Mr King said.
A visibly irritated Justice Patrick Keane rejected his argument, describing it as "hopeless".
He ordered Mr Culleton pay his own legal costs.
"The Senate resolved to refer the question to the court. That's it," he said.
"The arguments that were put were really hopeless."
Justice Keane ordered votes for Mr Culleton be counted for the candidate next in the order of the voters' preference.
It follows the court's ruling that Mr Culleton was ineligible to run for parliament due to a larceny conviction which carried a possible one year jail term.
The special count won't be a fresh poll as the court found the votes cast "above the line" for Pauline Hanson's One Nation in WA would have flowed through the party's ticket on the ballot paper to the next candidate on the list.
The court heard 96.04 per cent of the votes received by Mr Culleton were "above the line" votes for the party and any special count would not distort the true intent of voters.
Mr Culleton's brother-in-law, Perth electrician Peter Georgiou, was number two on the WA One Nation ticket.
The Australian Electoral Commission will conduct the special count in Perth on Tuesday.
The AEC says it will use the voter preference data already taken from the ballot papers of votes cast at the July 2 election.
Voter preferences for Mr Culleton will be disregarded, and allocated to the next preferred candidate.
Once complete, the AEC will provide the result to the High Court.
