Labor is warning the Coalition against a “dummy spit” legal challenge that could force the voters of Herbert back to the polls.

The Australian Electoral Commission says Labor’s Cathy O’Toole has won the Queensland seat of Herbert by 37 votes, ousting Liberal incumbent Ewen Jones.

It’s the last House of Representatives seat to be finalised and leaves the coalition government with 76 seats, a majority of just one.

Labor has won 69 seats.

But that could change, with the possibility of the Liberals seeking a Court of Disputed Returns ruling to void the election result and run a fresh election.

The Liberals may challenge on behalf of Ewen Jones. Photo: AAP

“I hope the Liberals don’t have some sort of dummy spit,” Opposition Leader Bill Shorten told Sky News on Sunday.

The party has 40 days after the writs are returned on August 8 to lodge a petition in the court.

It is claimed some soldiers from Lavarack Barracks missed out on voting while they were on Exercise Hamel in South Australia during the election campaign.

As well, a number of Townsville hospital patients are also believed not to have been given the opportunity to vote.

“I think people in Townsville will be legitimately frustrated if through red-tape bungling there has to be a re-election,” Mr Shorten said.

“Australians have had an eight-week election period and it would have to be pretty strong grounds to justify taking people back to the polls again.”

So far, 122 out of 150 seats have been formally declared.

Counting in the Senate continues, with the Northern Territory, ACT and Tasmania declared.

The results in South Australia and Western Australia are expected to be declared on Monday, for Victoria and Queensland on Tuesday, and NSW on Wednesday.