Primary jurisdiction allows a court with jurisdiction to stay or dismiss so that an agency may first address an issue within its special competence.
Factors. Whether the question is within the conventional experience of judges or requires the exercise of administrative discretion; whether the question requires uniformity across cases; whether the agency has a mechanism to address it; and whether prior application has been made.
Distinguished from exhaustion. Exhaustion applies where a claim is cognisable only after agency processes are complete. Primary jurisdiction applies where a court could decide, but the agency should go first.
Where it arises commercially. Rate and tariff disputes with regulated utilities and carriers; questions of technical standards; classification and labelling disputes; and questions turning on regulatory interpretation where the agency has an active proceeding.
Costs. Referral adds years, and the doctrine is applied sparingly for that reason. Courts often decline where the agency has no proceeding available to the parties.
Procedure. Stay rather than dismissal where limitation periods are at risk, with a schedule for reporting on the agency proceeding.
Strategic use. A defendant facing a claim that depends on a regulatory question may seek referral both for the substance and for the delay, and courts are alert to the second motive.