Might some of the provisions of a Product Disclosure Statement not be contractual terms between a customer and his or her bank? ANZ yesterday advanced this position in a test case over exception fees in the Federal Court, a stance that earned the rebuke of the judge, Michelle Gordon.Alan Archibald, for ANZ, argued that many "instructive statements" in PDS documents did not form part of the bank's contracts with customers.Rather, Archibald argued, many terms in PDS and Terms & Conditions documents served only an "advisory" function.Justice Gordon intervened to quiz the bank's Silk on how customers were expected to distinguish between provisions that were contractual and those that were not.After a brief sparring session, Judge Gordon told Archibald that he was "pushing a very large stone up a tall hill" with his argument."No disrespect to your submissions… this distinction between what is informational and what is contractual is tortuous,'' the judge said."I don't think this kind of exercise you're asking me to undertake is either intellectually rigorous or helpful."Gordon then questioned whether customers were aware of disclosure statements and other contractual documents, telling the court that she hadn't read them herself until she was asked to hear the case."How many customers actually read these things?" she asked Archibald.ANZ was unveiling its opening submissions yesterday in the test case being brought against it by 34,000 customers charged exception fees for overdrawing on deposit accounts and exceeding their credit card limits since 2004.Several plaintiffs are relying on terms specified in the bank's Product Disclosure Statements to support the general argument that ANZ used exception fees as a smokescreen to impose financial penalties on them.On behalf of the plaintiffs, Maurice Blackburn is arguing that exception fees of up to $35 were really penalty charges because they disproportionately exceeded the bank's cost of managing overdraws and credit limit breaches.The plaintiffs' main argument is that ANZ did not meet its contractual obligations by allowing deposit accounts to go into debit, or credit card balances to eclipse agreed limits, without written approval from customers.  After facilitating the account breaches, ANZ then profited by levying penalties.The plaintiffs' case rests on the view that the bank committed breaches of contract when it processed the transactions that put deposit accounts into debit and credit cards above pre-agreed limits.But, yesterday, ANZ provided a different interpretation of its contractual relationship with its customers.The bank is arguing that most account overdraws and credit limit breaches are, in fact, initiated by customers and provided by the bank as an additional service. According to this argument, such transactions constitute a separate arrangement between the bank and its customer, where the former is free to levy interest, a fee and a margin for the added service and for the risk it takes on.Because they are separate arrangements to other product relationships between ANZ and the same customer, no exception fee can be characterised as a penalty payment.Archibald told the court that under these arrangements neither the bank nor its customers were in breach of their