Kubirske v Kubirske (2848 of 2009) [2011] NAHC 40 (18 February 2011)

Kubirske v Kubirske (2848 of 2009) [2011] NAHC 40 (18 February 2011)

The applicant proved that the additional documents requested are relevant to the main action, particularly to the issues of maintenance and the respondent's claim. The respondent is compelled to make discovery of all documents listed in the Rule 35(3) Notice from the date of marriage, not limited to a shorter period. The respondent's opposition was without merit and resulted in unnecessary costs and delay.

Citation
[2011] NAHC 40
Parties
Applicant/plaintiff: Waldi-Beate Kubirske (born Heins); Respondent/defendant: Ernst August Kubirske
Court
High Court
Jurisdiction
Namibia
Judgment Date
18 February 2011
Case Number
2848 of 2009
Procedural Posture
Divorce Application (interlocutory Discovery Application) / Ruling on Application to Compel Further Discovery
Outcome
application to compel further discovery granted
Legal Topics
Discovery of Documents, Divorce, Maintenance, Custody, Costs
Source Language
English
Civil Procedure Family Law Discovery of Documents Divorce Maintenance Custody Costs

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Parties

Waldi-Beate Kubirske (born Heins)

Applicant/plaintiff

Ernst August Kubirske

Respondent/defendant

Procedural Posture

Divorce Application (interlocutory Discovery Application) / Ruling on Application to Compel Further Discovery

Legal Issues

  1. 1 Whether the respondent should be compelled to make further discovery of documents under Rule 35(3)
  2. 2 Whether the requested documents are relevant to the issues in the main divorce action, including maintenance and custody
  3. 3 Whether the period for discovery should be limited

Ratio Decidendi

The applicant proved that the additional documents requested are relevant to the main action, particularly to the issues of maintenance and the respondent's claim. The respondent is compelled to make discovery of all documents listed in the Rule 35(3) Notice from the date of marriage, not limited to a shorter period. The respondent's opposition was without merit and resulted in unnecessary costs and delay.

Court Disposition

application to compel further discovery granted

Orders

  • Defendant to make the documents listed in Plaintiff’s Rule 35(3) Notice available for inspection within five days or state on oath within five days that such documents are not in his possession and their whereabouts if known.
  • Plaintiff is authorised to apply for an order striking out defendant’s defence and dismissal of counterclaim with costs if there is non-compliance.