Hampden–Mount Elliott Railway Act of 1908 (8 Edw VII No. 12) (Qld)

RAILWAYS AND TRAMWAYS. 8 Enw. VII. No. 12, 1908. Hampden-Mount Elliott Railway. 9367 An Act to Validate an Agreement entered into 8 Edw. VII. between the Secretary for Railways, for and N~ ~ ~ 2. on behalf of the Government of Queensland, Htrb~ ~ ~ N' and Mount Elliott Limited, for the Construc- RA~ . ~ ~ ~ TTACT tion of a Line of Railway from Cloncurry to m' 1908. Mount Elliott, and to Authorise the Construc- tion of the said Railway, and to make Provi- sion for Matters incidental thereto. [ASSENTED TO 21sT APRIL, 1908.] W HEREAS, on the seventh day of April, one Preamble. thousand nine hundred and eight, an agreement was entered into between the Secretary for Railways, for and on behalf of the Government, and Mount Elliott Limited, a Company duly incorporated and registered as a Limited Company in accordance with the laws of Queens- land, its successors and assigns, for the construction of a line of railway from Cloncurry to Mount Elliott by way of Hampden, a copy of which agreement is set forth in the Schedule to this Act: And whereas it is desirable that the said agreement should be validated by an Act of Parliament, and that the construction of the said line of railway in accordance with the said agreement should be duly authorised: Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows : - 1. This Act may be cited as "The Harnpden-Mount Short title. Blliott Railway .Act of 1908." 2. (1.) The agreement entered into on the seventh day Validation of <>f April, one thousand nine hundred and eight, between the agreement. Secretary for Railways, for and on behalf of the Govern- [Schedule.] ment, and Mount Elliott Limited, for the construction 6f a line of railway from Cloncurry to Mount ~ jlliott by way <>f Hampden (hereinafter 'referred to as the railway), and for the maintenance, management, and working of the 'Same, a copy of which agreement is set forth in the Schedule to this Act, is hereby validated.

9368 RAILWAYS AND TRAMWAYS. Hampden-Mount Elliott Railway. 8 EDW. VII. No. 12, Construction, &c., (2.) The construction, maintenance, management, and a~ lthorised. working of the railway in pursuance of the agreement are hereby authorised and approved. .Appro- priation. (3.) All sums of money which, in pursuance of the agreement, may from time to time become payable by the Government are hereby appropriated for the purpose. THE SCHEDULE. AGREEMENT entered into this Seventh day of April 1908 between the- Honourable GEORGE KERR Secretary for Railways of the State of Quel:'ns- land for and on behalf of the Government of the ~ aid State (hereinafter called" The Minister") of the one part and MOUNT ELLIOTT LIMITED being a Company duly incorporated and registered as a Limited Company in accordance with the laws of the said State its sllccessors and assigns and hereinafter called "The Company" of the other part Wherl:'as the- Company has for some time past been desirous of having a line of Railway constructed under a Mining Lease to connect the Company's Mines and Smelting Works with the Government Hailway at CIoncurry and intervening places and with that object has been negotiating with the Minister for the construction thereof And whereas the Government of the said State is the Proprietor of a line of Railway between the port of Townsville and Cloncurry in the said State And whereas the parties have agreed to procure the construction of the proposed line of Railway upon the terms conditions and stipulations hereinafter set forth Now this Agreement witnesseth that in consideration of the premises and of the respective covenants conditions and stipulations hereinafter contained the sa;d parties do and each of them doth mutually covenant promise- and agree with and to the other of them as follows that is to say- 1. In this Agreement unless the context otherwise rpquires the- following terms have the meaning set against them respectively that is to say- "Minister "--The said Secretary for Railways or other Minister of the Crown charged with the administration of the Rail. way Acts. "Commissioner "-The Commissioner for RailwaYf! duly appointed under the Railway Acts or other officer or officers charged with his powers and duties. "The Hampden-Mount Elliott Railway "-The line of Railway to be constructed under this .A greement and which is intended to commence at Cloncurry or some adjacent point on the Cloncurry Railway and to extend via Hampden to a terminal point at Mount Elliott. When the line of Railway i~ constructed the term shall mean the line of l<ailway so constructed. 2. The Hampden-Mount Elliott l<ailway shall commence at Clon- curry or some adjacent point on the Cloncurry Railway and shall proceed thence by a route by way of Hampden to be mutually agreed upon and to be approved by the Commissioner to a point at Mount Elliott to be selected and approved of by the Commis~ ioner and the Company upon cOll8iderations of probable traffie and construction cost. The Railway shall be constructtd on the standard 3 feet 6 inches gauge and in accord-

RAILWAYS AND TRAMWAYS. 1908. iIampden-Mount Ellioft Railway. ance with the specification approved by the Commissioner as ~ uitable for a railway carrying a moderate mineral traffic and carrying passengers with safety at the rate of 15 miles an hour. 3. The :Minister shall without unnecesRary delay endeavour to obtain the validation of this Agreement by an Act of Parliament of Queensland with full and complete statutory power for the construc- tion and working of the Hampden-Mount Elliott Hailway and for all things pertaining to an Agreement covering the conditions hereof. 4. At any time within three months of the ratification of this Agree- ment by Parliament the Company may give notice in writing to the Commissioner requiring him to make a survey of the route of "The Hampden-Mount ElIiott Railway" and to prepare the necesRary plans sections and book of reference and to make an estimate of the cost of construction of the Railway. Upon the receipt of such notice the Commissioner shall without delay furnish to the Company an estimate of the cost of such survey and preparation of plans and other documents and the Company shall there- upon pay one half of such cost to the Commissioner who shall then without delay make such survey and shall prepare such other plans and documents as he may deem necessary and shall by writing under his hand certify what is the estimated cost of the construction of the Hailway. . Provided that in the performance of his duties under this paragraph of this Agreement and before giving the said certificate the Commis- sioner shall consult with the representative of the .Company appointed by it in that behalf with a view to making mutual arrangements upon all matters relating to the details and cost of construction upon which . consultation may be necessary or desirable and shall afford to such representative all such information and access to all such documents and writings in the possession or control of the Commissioner as will assist such representative in verifying the Commissioner's estimate of constructional cost. The costs and expenses incurred by the Commissioner and by the Company's representative in the performance of their respective duties under this paragraph of this Agreement shall be included in his said estimate of constructional cost. The certified estimate of the cost of the construction of the Railway shall include cost of survey and any sums which may be payable by the Commissioner for or in respect of duty freight carriage and insurance , and cost of survey and of labour including supervi~ ion inspection and SurVfY and all purchase money and compmsation payable in respect of lands resumed including costs and expenses incurred in connection with the re8umption thereof. The said certificate of the Commissioner shall for all purposes be taken as conclusive evidence of the estimated cost of the survey and of construction of railway. 5. Upon completion of the survey and within three months of the delivery to the. Company of the Commissioner's certified estimate of construction cost which shall include cost of survey the Company shaH deposit with the Commissioner ~ uch a sum as together with the amount deposited in respect of cost of survey shall amount to one half of such estimated construction cost. Provided that if the amount of such certified estimate ,shall exceed the sum of £200,000 the Company shall have the option of either withdrawingfromthe Agreement or of paying a deposit equal to one half the amount of such certified estimate. 9369

9370 RAILWAYS AND TRAMWAYS. Hampclen-Mount ElUott Railway. 8 EDW. VII. N' o. 12~ 6..When the Company has made the deposit towards the cost of construction mentioned in Clause 5 the following provisions shall take effect that is to say- (i.) After the date of such deposit the Commissioner shall without delay commence to construct the Hailway and shall wholly construct and complete the Railway before the expiration of two years after the date of such deposit but subject to any allowance for any loss of time caused by strikes perils of the sea act of God or other unavoidable delay for which the Government or the Oommissioner cannot justly be held responsible; (ii.) The Company shall be entitled to interest upon the unex- pended balance of the deposit mentioned in Clause 5 calculated at the rate of three pounds per centum per annum and such interest shall be computed half yearly as on the thirtieth dai of June and the thirty-first day of December in each year while any part of the said deposit remains unexpended. For the purpose of ascertaining the amount of the deposit remain- ing unexpended one half of the total expenditure shall be charged to the Commissioner and one half to the Company. (iii.) The total amount which the Company shall be required to deposit shall be the amount ascertained as hereinbefore provided. If the total cost of construction of the Railway proves to. be in excess of the Commissioner's said certified estimate the Railway ·shall nevertheless be completed at the cost of the Government and without any extra cost to the Company. If the total cost of construction of the Railway proves to- be less than the Commissioner's said certified estimate a sum equal to one half of the amount -of the saving thus effected shall upon the completion of the Railway be repaid by the Commissioner to the Company. For all other purposes of. this Agreement the estimate of cost of construction or any increase thereof agreed to by the Oompany shall be taken as the actual cost of construction. (IV.) All payments made by the Commi~ sioner shall be duly vouched for and vouchers for such payments shall be duly audited by some qualified person approved by the Company. and the Commissioner and if in such person's opinion such payments are fit and proper char~ es against the Railway Oonstruction Account shall be passed by him as such. (v.) Save as by this Agreement is expressly provided until the expirati~ n of fifteen years from the date of the completion of the Hailway the Oompany shall not have any right or claim to the repayment of any part of the amount of its deposit towards the cost of construction of the Railway or to be paid or receive any interest upon the same or any part' thereof. 7. The Railway shall be constructed maintained managed and worked under and subject to the Railway Acts relating to the Government Railways of the © State of Queensland save in so far as the provisions of those Acts are modified varied or ne~ atived by this Agreement. Provided always that none of the provisions of " The Railways Act of 1906"· shall apply to the Railway. . • 6 Edw. VII. No. 15, supra, page 9109.

RA.ILWAYS AND TRAM\ " ~ AYS. 1908. Hampden-Mount Elliott Railwa.1f. 8. The Railway when completed or such section ot it as may from iime to time be approved of for the purpose by the Commissioner shall be opened for public traffic and shall be worked manned and maintained by the Commissioner with his own staff and shall vest in the Commis- sioner as a Government Railway. 9. During the currency of this Agreement the Commissioner shall maintain the Railway in good and efficient repair reasonable wear and tear being allowed for and shall make reasonably adequate provision for -the haulage of the traffic thereon and the Commissioner shall not without the written consent of the Company part with the management or control -of the Railway and the Company shall not without the consent of the Governor in Council execute any document or instrument in connection with the Railway which ma.y have the effect of impeding or interfering with the peaceful and absolute possession and control of the Railway by the Commissioner. 10. The rates of tolls fares freights and charges for the carriage of goods live stock parcels and passengers to be charged by the Com- missioner on the Hampden-Mount .Elliott Railway shall be calculated on a mileage basis and shall be the same as the rates authorised on the Chillagoe Railway under the Schedule of rates fares and freights dated twelfth September 1900 and authorised by the Governor in Council under" The Mareeba to Chillagoe Railway Act of 1897."* Such rates shall apply equally to all persons and the Company shall have the right of inspection of all account books and documents connected with the traffic on the Hampden-Mount Elliott Railway but the Commissioner may (with the written consent of the Company ancl for the purposes of promoting traffic and the development of' the districts served by the Hampden-Mount Elliott Railway) undertake to carry minerals and ores -of different qualities and any other special classes of goods at reduced rates of freight to be approved of by the Company. Provided however that any such reduction of rates of freight shall be determinable at any time upon three months' previous notice bemg given to the other by ~ ither the Commissioner or the Company. 11. For all the purposes of this Agreement the cost of the manage- ment and working expenses of the Hampden-Mount Elliott Railway shall be ascertained on the basis of the train mileage and the costs of maintenance of the H ampden-Mount Elliott Railway shall be ascertained 'Dn the basis of mileage length but the total management working and maintenance expenses charged by the Commissioner shall not be higher than the average annual total cost of managing working and main- taining the Northern Railway during the three years preceding the date ·of this Agreement: and with the view of ascertaining accurately the latter the Company or its accredited representative is to be permitted to examine the books and accounts of the N orthernRailways for the period 'ilpecified. 12. }'rom and after the opening of the Railway or any completed "Section thereof as aforesaid to public traffic and until the expiration of a period of fifteen years after the completion of the Railway accounts of the Railway shall be kept and half yearly balances shall be made and oahall if required by the Company and anhe expense of the Company be audited and passed by some competent person on behalf of the Company and the Commissioner shall by his certificate as soon as possible after ihe thirty-first day of December and the thirtieth day of June respectively in each year declare what the gross revenue of the Railway has been for '*' 61 Vie. No. 19, supra, page 6468. L 9371

.... 93'12 RAILWAYS AND TRAMWAYS. Hampden-Mount Elliott Railway. 8 EDW. VII. No. 12, the last preceding six months and after deducting all sums on account of the management and working and maintenance expenses as hereinbefor:e set forth of the Railway for the Slme period declare what the net profits. have been. The amount of such net profits for each such period shall be appro- priated as follows:- - . FmsTLY.-The Commissioner shall retain such portion of the amount of such profits as is equal to interest at the rate· of three pounds ten shillings per centum per annum on one- half of the certified estimate of cost of constructiou of the Railway (or such completed section as evidenced by a certificate of the Commissioner given as hereinbefore pro- vided) and the amount of such interest shall for each half yeat' ending the thirty-fit'st day of December and thirtieth day of June respectively be a first charge upon such profits.. SECONDLY.-The residue if any of such profits shall be paid by the Commissioner to the Company. If during any year- ending as aforesaid thet'e are no such net profits any loss- shall be borne by the Government and the Company shall be under no liability or obligation in respect of any such loss. H during any year E'nding as aforesaid such net profits. do not amount to interest at the rate aforesaid on the total: contribution bv the Government to the cost of construction of the Railway (or completed section as the case may be) the CommiHsioner shall retain all such profits but the Com- panyshall be under no liability or obligation to make good. any such deficiency in respect of such interest. Save as aforesaid the Company shall not have any right or claim te>· participate in the profits arising from the Railway. The expenditure during each half year shall be classified as follows : - (a) Maintenance per mile open (b) Management and working expenses per train mile including a pl'oper allowance for the use of any rolling stock supplied. by the Commissioner for the use of the Railway. _ For the purpose of this paragraph of this Agreement eaeh half year- ending the thirty-first day (If December and the thirtieth day of June - shall be considered separately from each other such half year and the- balanc~ of account to debit or credit of any such half year shall not be- carried forward to another such half year or half years. 13. At the end of fifteen years after the date specified for the- completion of the Railway the value of the Railway shall be computed on the following basis namely As being a sum equal to twenty-eight and four-sevenths times the- amount of the average yearly net earnings (thut is to say the- excess of receipts over maintenance management and working expenses as hereinbefore defined) of the Railway during the- then last preceding period of five years. 14. The Company shall thereupon become entitled to receive from the Commissioner a sum equal to one half the value of the Railway s() computed. And such sum when received by the Company shall be received and accepted in full satisfaction and payment of the total sum deposited by the Company towards the cost of construction of the Railway and of all rights claims and demands by the Company on account of the: Railway other than any ascertained and certifip.d profits accrued due te> the Company under this Agreement and remaining unpaid.

RAILWAYS AND TRAMWAYS. 1908. Ha1llpden-Mount Elliott Railway. And save as last aforesaid the Commissioner and the Government of Queensland upon such payment being made shall be released and discharged from all liability or obligation to the Company under this Agreement or any matter or thing arising thereunder. 15. The payment by the Government of such sum as aforesaid shall be made in London to the Company or its nominee and may at the option of the Government be made either in cash or debentures bearing interest a.t four per centum per annum. If payment be made in debentures such debentures or any portion of them shall be redeemable at par on the first day of January 1952 subject to a right of redemption by the Government onthe first day of January 1932 at par upon the Government giving six months' prior notice of its intention to redeem at the earlier date. 16. Nothing in this Agreement shall prevent the Government from at any time constructing and therea:l'ter maintaining any line of railway or tramway in continuation of the Railway or any collateral branch railway or tramway communicating or connecting with the Railway. 17. Nothing in this Agreement shall give the Company any claim to compensation in the event of the Commissioner being at any time authorised by Parliament to construct any line of railway or tramway the construction of which may be deemed to injuriously affect the Railway. 18. With the consent of the Governor in Council the Company may from time to time assign or transfer to any person all or any the rights powers privileges authorities concessions interests and property conferred upon the Company by this Agreement. Upon every such assignment or transfer the assignee or transferee shall so far as the assignment' or transfer extends have the same rights powers and privileges and be subject to the same duties obligations and penalties aB the Company has and is subject to under this Agreement. Provided that no such consent to any such assignment or transfer to any corporation or joint stock company shall be given by the Governor in Council unless or until such corporation or joint stock company has been duly registered in Queensland in accordance with "The Companies Act 1863"* or "The British Oompanies Act of 1886"t or duly registered in the Commonwealth in accordance with some general Act of Parliament of the Commonwealth. 19. If in the taking of any account under this Agreement any broken period less than half a year shall occur either before or after the half yearly dates herein mentioned proportionate allowance shall be made in regard to such broken period. 20. In case of any difference or dispute arising between the parties as to the amount to be paid by the Government to the Company after the expiration of fifteen years from the date of the completion of the Railway or for profitB or for any other matter or as to any claim or demand by the Government or the Commissioner against the Company under this Agreement or arising touching this Agreement or any matter or thing thereunder the matter in difference or dispute shall be settled by arbitration. Each party shall appoint one arbitrator and in the event of such arbitrators failing to agree upon any question submitted to them such question shall be determined by a Judge of the Supreme Court of Queensland acting as umpire in the matter whose decision shall be final. * 27 Vie. No. 4, supra, page 144. t 50 Vie, No. 31, supra, pa,ge 198. 9373

9374 RAILWAYS AND TRAMWAYS. Hampden-Mount .Elliott Railway. 8 Enw. VII. No. 12, 1908. Such submission to arbitration 8hall be mbject to the provisions of the" interdict Act of 1867."* Provided that the arbitration proceedings shall be conducted in Queensland. 21. 'rhis Agreement is entered into by Mount Elliott Limited for and on behalf of itself and also of the Hampden-Cloncurry Copper Mines Limited and of a new Company to be called The Cloncurry Smelting and Railway Company Limited wherein the said Mount Elliott Limited and The Hampden-Cloncurry Copper Mines Limited are to be shareholders and upon the registration of the said proposed Company to be called The Cloncurry Smelting and Railway Company Limited with a nominal capital of not less than £200,000 whereof not less than £100,000 shall be subscribed and upon the certificate of the Commissioner that he is satisfied that these requirements have been fulfilled the rights powers privileges authorities concessions interests and property conferred upon the Company shall thereupon become vested in the Cloncurry Smelting and Hailway Company Limited and thereafter this Agreement shall be construed as jf the said The CloIlcurry Smelting and Railway Company Limited were included herein in the place of Mount Elliott Limited. J. F. TIIALLON, Witne~s. GEORGE KERR. ~ The Common Seal of Mount Elliott Limited was affixed ( L.S. , hereto by William Lawrence Baillieu, one of the ~ Directors, in the presence of- FREDERIC GODFREY HUGIIES, Secretary. WM. L. BAILLIEU, Director. * 31 Vie. No. 11, supra, page 994. By Authority: GEORGE ARTHUR VAUGHAN, Government Printer Brisbane.